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the WORDS of 

JUSTICE 

BRANDEIS 



BY THE SAME AUTHOR: 

A Rabbi Takes Stock 
The Jew and the Universe 
Crisis and Decision 
The Golden Chain 
Undefeated 
Brandeis on Zionism 
The Book of Booh 
In the Beginning 



the WORDS of 

JUSTICE 
BRANDEIS 



L. D. 



edited by SOLOMON GOLDMAN 

with a Foreword by 

JUSTICE WILLIAM O. DOUGLAS 



HENRY SCHUMAN NEW YORK 




Copyright 1953 by Henry Schuman, Inc. 
Manufactured in The United States of America 

by H.Wolff 



to 

DAVID JACKER 
in admiration, gratitude, and deep affection 



CONTENTS 



FOREWORD, xiii 

PREFACE, XV 

JUSTICE BRANDEIS AMERICAN AND JEW, 1 

THE WORDS OF JUSTICE BRANDEIS, 23 



Abnormal and Privileged, 25 
Absolute, 25 
Absolute Power, 25 
Abstract Thinking, 26 
A Day's Work, 26 
Agreement, 26 

Amending the Constitution, 26 
Amendment, 26 
America, 26 

American Democracy, 27 
American Ideals, 27 
Americanization, 29 
American Jewish Community, 
29 



Americans, 30 

American Standard of Living, 

30 
America's Fundamental Law, 

30 
America's Insistent Demand, 

30 

Angels and Devils, 30 
Anti-Semitism and the Nazis, 

30 

Arbitration, 31 
Argument of Force, 31 
Arithmetic, 31 
Art, 32 



imt * 

Artificial Legal Conviction, 32 

Artists, 32 

Averages, 32 

Banker-Middleman, 32 

Bankers' Ethics, 33 

Bankers' Failure, 33 

Bankers' Function, 34 

Bankers 7 Power, 35 

Betrayal of Our Great Herit- 
age, 35 

Better Than Peace, 36 

Bible, 36 

Big Business, 37 

Bigness, 37 

Blighting Influence of Journal- 
istic Gossip, 39 

Boldness, 40 

Brain, 40 

Brotherhood, 40 

BusinessA Profession, 41 

Business Success, 41 

Calmness, 42 

Capacity of Individual Man, 
42 

Centralization, 42 

Challenge of Existing Law, 43 

Change in a Democracy, 43 

Character, 44 

Character and Intelligence, 44 

Child, 44 

Chosen People, 44 

Church and Democracy, 52 

Cohen, Benjamin V., 52 

Collective Bargaining, 52 

Common People, 54 

Competition, 55 

Competition From Within, 57 

Concentration, 57 



Contents 

Concrete Problems, 57 

Conservation, 57 

Conservatism, 58 

Constitution, 58 

Control and Cooperation, 58 

Cooperative Movement, 58 

Corporation Lawyer, 59 

Courts and the People, 59 

Cutthroat Competition, 59 

Dangers to Democracy, 59 

Deception, 59 

Delicate Operation, 60 

Demand, 60 

Dembitz, Lewis N., 60 

Democracy, 61 

Democracy and Aristocracy, 
62 

Democratic Ideals, 62 

Democratic Methods, 63 

Depreciation, 63 

Despotism, 63 

Differentiation Not Uniform- 
ity, 63 

Douglas, William O., 64 

Duties, 64 

Duty, 64 

Duty to the Community, 64 

Early New Englanders, 64 

Educated Jew, 64 

Education, 65 

Educational Endowments, 65 

Educational Standard, 65 

Education on Electorate, 65 

Efficiency, 66 

Efficiency and Social Ideals, 67 

Efficiency's Test, 68 

Elimination of Waste, 68 

Emerson, 68 



Contents 

Employer and Employee, 68 
Employers and Unions, 70 
England, 71 

Enlightened Unselfishness, 72 
E Pluribus Unum, 72 
Equality of Opportunity, 73 
Excesses, 73 
Excesses of Capital, 73 
Existing Institutions, 74 
Experimentation, 74 
Facts, 77 

Failure of Life Insurance Com- 
panies, 78 

Falsification of Books, 78 
Fear, Repression, Hate, 79 
Financial Dependence, 79 
Financial Independence, 80 
Freedom of Speech, 80 
Function of Speech, 87 
God's Presence, 87 
God's Purpose, 88 
Good Bargain, 88 
Government as Lawbreaker, 88 
Government Control, 89 
Government Employees, 89 
Government Intrusion, 89 
Greatest Danger, 90 
Greatest Economic Menace, 

90 
Greatest Good of Greatest 

Number, 91 
Greatest Menace to Freedom, 

91 

Greatest Problem, 91 
Great Physicians, 91 
Half Free and Half Slave, 91 
Hamilton, Alexander, 92 
Harmony in National Life, 92 



Hebrew Language, 92 

Herzl, Theodor, 93 

History, 93 

Home Life, 93 

How Human Beings Improve, 

93 

Human Nature, 93 
Human Truth, 94 
Immortality of the Soul, 94 
Indifference, 95 
Individuality of Peoples, 95 
Individual Suffering, 97 
Industrial Absolutism, 97 
Industrial Democracy, 97 
Industrial Democracy and 

Thinking, 99 
Industrial Injustice, 101 
Industrial Liberty, 101 
Intelligent Self-Interest, 103 
Interlocking Directorates, 103 
Investor's Servility, 104 
Irregularity of Employment, 

105 

Jew Definition of Term, 105 
Jewish Attributes, 106 
Jewish Festivals, 106 
Jewish Heritage, 106 
Jewish Individuality, 107 
Jewish Intellectual Capacity, 

107 

Jewish "Peculiarities," 108 
Jewish People Its Preserva- 
tion, 108 

Jewish Persecution, 109 
Jewish Problem, 109 
Jewish Spirit and America, 110 
Jewish Survival, 110 
Jews and Democracy, 111 



Jews Today, 112 

Joiners, 113 

Joseph, 113 

Judges, 113 

Justice, 114 

Labor's Share, 114 

Law and Life, 115 

Law and Public Opinion, 115 

Law and the Will of the Peo- 
ple, 115 

Law's Function, 116 

Laws Not Man, 116 

Lawyers' Education, 117 

Lawyers' Knowledge, 118 

Lawyers' Opportunity, 119 

Lawyers' Special Obligation, 
120 

Lawyers' Training, 120 

Legal Profession, 121 

Legal Science Deaf and 
Blind, 121 

Leisure, 122 

Liberalism and Anti-Jewish 
Prejudice, 123 

Liberation of Smaller Peoples, 
123 

Liberty, 123 

Liberty's Greatest Danger, 125 

Liberty Through Law, 125 

Library, 125 

Liquor, 125 

Living Law, 125 

Logic of Realities, 125 

Long Hours, 126 

Low Wages, 127 

Loyalty, 127 

McElwain, Wm. H., 127 

Maccabean Struggle, 128 



Contents 

Machinery, 128 

Main Factor in Betterment, 

128 

Man, 128 
Man's Work, 128 
Massachusetts' Task, 128 
Messiah, 128 
Minimum Wage, 1 30 
Miracles, 130 
Money, 130 
Money-Making and Service, 

130 

Monopoly, 131 

Monopoly and Efficiency, 139 
Motives and Results, 139 
National Individuality, 139 
Nationality, 140 
Nation and Nationality, 140 
Nature of Law, 141 
Neutrality, 141 

New Demands for Justice, 141 
New Freedom, 142 
Noblesse Oblige, 142 
One Life to Live, 143 
One Master Only, 143 
Open Opportunity, 143 
Organization, 144 
Our New Peonage, 144 
Palestine, 145 

Paramount Public Need, 145 
Parentage, 145 
Past, 145 
Past Losses, 145 
Path to Bankruptcy, 145 
People and Raw Material, 146 
People and Rich, 146 
People's Own Gold, 146 
Politician, 147 



Contents 

Popular Opinion, 147 

Possibilities of Human De- 
velopment, 147 

Practical Men, 148 

Preparedness, 148 

Price Control, 148 

Private Citizen, 148 

Production, 149 

Products of the Mind, 149 

Profit Sharing, 149 

Progress, 149 

Proper Conferences, 149 

Property, 150 

Propriety, 151 

Public Interests, 151 

Publicity, 151 

Public Opinion, 151 

Public Service, 151 

Punctuality, 152 

Puritans, 152 

Quality and Spiritual Value, 
152 

Radicals and Conservatives, 
153 

Rate-Making, 153 

Reading, 154 

'Regulated Competition, 154 

Regulation, 155 

Remedial Institutions, 155 

Resettlement of Palestine, 156 

Responsibility, 156 

Resurrection, 156 

Revelation, 157 

Revolutionary Change, 159 

Right to Privacy, 159 

Risks, 159 

Roosevelt, Theodore and Wil- 
son, Woodrow, 159 



Rule of Law, 159 

Sabbath, 160 

Savings Bank Insurance, 160 

Scientific Management, 160 

Scientists and Theologians, 162 

Securities, 162 

Separation of Governmental 

Powers, 163 

Serious Controversies, 163 
Service vs. Charity, 163 
Sherman Law, 163 
Short Cuts, 164 
Short Workday, 165 
Sinful Waste, 165 
Skilled and Unskilled Labor, 

165 

Small Groups, 166 
Small Stockholders, 166 
Social Inventions, 167 
Socialism, 167 
Social Problems and Scientific 

Inventions, 168 
Solving the Jewish Problem, 

168 

Soundness of Judgment, 168 
Specialization, 169 
Strikes, 169 
Struggle, 169 

Success Built on Failure, 170 
Supply and Demand, 170 
Teachers, 170 
Testing a Fact, 171 
Thinking, 171 
Transportation, 171 
Trial and Error, 172 
Triviality, 172 
Trustee of History, 172 
Uncharted Seas, 172 



XI t 



Unemployment, 172 

Unionism, 173 

Union Leaders, 173 

Unions, 173 

United States Steel Corpora- 
tion, 175 

United States Supreme Court, 
177 

Unity, 178 

University, 179 

Unrest, 179 

Unrestricted Power, 180 

BIOGRAPHICAL NOTES, 187 



Contents 

Unwieldy Committees, 181 

Value, 181 

Vital and Beyond Price, 181 

War, 181 

War and Its Aftermath, 182 

Weizmann, Chaim, 182 

White Paper on Palestine, 182 

Wire Tapping, 182 

Women, 183 

Women Overwork, 183 

Zionism, 183 

Zionism and Patriotism, 184 



FOREWORD 



There are some who identify themselves with a cause and 
then use it to advance their own interests. There are others 
who lose themselves in the cause, staking their reputations, 
their fortunes, and their lives that it may live. Government, 
business, labor, the professions, science, literature and the 
arts have had men and women of both types. But the person 
who has made some cause greater than himself is still so rare 
as to deserve a special tribute. 

There was a letter written to the late George W. Norris, 
reminding him that if he cast his vote for a certain measure 
before the Senate, he would never represent the people of 
Nebraska again. His reply was the measure of the man- 
that the important thing was not his own political survival 
but the survival of the idea embodied in the controversial - 
measure. 

That attitude also marked the man Brandeis. His obses- 
sion was with causes Zionism, honesty in government, 

x i i i 



xii? Justice 'Brandeis 

integrity in business and finance, the curse of bigness in 
our economic and political life. Much of his advocacy ex- 
posed him to scorn and to the bitterness of powerful opposi- 
tion. The enemies he made almost defeated his confirma- 
tion as Associate Justice of the Supreme Court. But, know- 
ing Brandeis, I know there was no price he would not 
have paid for his convictions. Causes were not lost in the 
man; he was dedicated to his causes. 

That is why the words he spoke, the advice he gave, the 
positions he defended will always be worth review and 
study. Some of his phrases could have been turned into 
more colorful literature by a Holmes. But no one could 
have improved on the power of his logic. And the fire 
of his convictions transformed simple words into the state- 
ment of fighting faiths. 

Rabbi Solomon Goldman has done a scholarly job in 
culling out from voluminous material many enduring ideas 
with which Brandeis was associated and numerous state- 
ments of a philosophy of life adaptable to the vicissitudes 
of a changing century. These utterances of Brandeis will 
stir warm and vibrant memories in all those who knew the 
man. To those who never had that privilege this collection 
will give some clues to his greatness. 



William O. Douglas 



WASHINGTON, D.C. 
MAY 17, 1952. 



PREFACE 



Between July 1938 and September 1941 I had the privilege 
of seeing Justice Brandeis as many as forty-five times. He 
would receive me as a rule at eight in the morning and the 
conversation would last a full hour. I also attended, during 
that period, several conferences at the Brandeis home, and 
was present at the only meeting which took place between 
the Justice and the late Dr, Chaim Weizmann after the 
breach between the two in 1920. Prior to 1938 I listened to 
Mr. Brandeis at several Zionist meetings, spent two hours in 
his company July 4, 1921, at a Pittsburgh hotel, as a mem- 
ber of the committee that formulated the resolution call- 
ing into existence the Palestine Development Council, and 
talked with him in Washington and Chatham in 1924, 
1926, 1928, 1932, 1936, and 1937. 

The first time I saw and heard Mr. Brandeis on a public 
platform was in 1913. When I heard him again in 1914 for 
the second time I was so moved by the very conciseness of 



x i; J * the words of 

his remarks that I went rummaging in New York's libraries 
for more of his words. My search was soon rewarded. For 
it led me to his then recently published BusinessA 
Profession. The reading of this book was a new experience 
for me. For it opened up worlds of which I had as little 
knowledge as of the Milky Way. Not that I had not known 
that they were there, but I thought of them as curios. 
Business A Profession made me realize to what extent I 
was implicated in those new worlds. 

From that time on I read everything written by or about 
Mr. Brandeis that did not escape my attention and on 
which I could lay my hands. Following an early reading 
habit, I marked in the books, pamphlets, and articles I was 
reading passages coming under the following four cate- 
gories: general ideas, whether original in essence or only in 
form and application; elucidations and affirmations of 
American principles; similarities between Americanism and 
Judaism; and echoes from the Bible, whether of its content 
or style. In 1933 I read avidly Professor Alpheus Thomas 
Mason's Brandeis: Lawyer and Judge in the Modern State. 
From then on I looked forward eagerly to whatever came 
from the pen of that most brilliant and consecrated of the 
biographers of Justice Brandeis. 

By the time I began to see the Justice frequently I had 
accumulated an abundance of Brandeisiana, which was 
soon supplemented by the views he expressed in the con- 
versations I had with him. The desire to make use of all 
this material was irrepressible. Unfortunately, I never got 
to write more than a few pieces, three of which appeared 
in The New Palestine and one each in The Jewish Frontier 
and the Israeli Gilyonot. For Time, ever niggardly with 
modern clergymen, had in store for me other plans and 
trials and a freak accident that have imposed restrictions 
on my literary interests. 

May the reader, if there should ever be one to glance at 



justice TZrandeis xvii 

this Preface, forgive me for writing in so personal a vein. I 
do so both to explain what it was that impelled me to com- 
pile this little volume and to apologize for publishing it in 
its present state of incompleteness and imperfection. Let 
him bear with me. I come only, belatedly, to pay homage 
to the memory of one of the greatest men of our times for 
having afforded me the privilege of sitting at his feet. 

Now as to the sources to which I am indebted. Mr. 
Brandeis, it should be noted, was not a professional writer 
or scholar. That is, his primary aim was not to produce 
books. He was one of those rare social philosophers who 
was far more interested in the day-to-day improvement of 
the present than in envisaging Utopian futures. Further- 
more, the writing of a continuous book, setting forth a 
philosophical system, he most probably regarded as too 
"big" and presumptuous an undertaking for a mortal man. 
He deemed it sufficient to treat of one specific, concrete 
problem at a time, and he wrote and spoke only to help in 
the solution of the problem before him. Consequently his 
"literary" activity took the form of addresses, lectures, 
articles, pamphlets, discussions, statements, and cross-ex- 
aminations before a variety of government and citizens' 
commissions, interviews, briefs, opinions, and letters. 

Of this material Small, Maynard & Company published, 
in 1914 and again in 1925, under Mr. Brandeis' name 
Business A Profession. Both editions contain a chapter on 
Mr. Brandeis by Ernest Poole which was first published in 
the American Magazine in February, 1911. The 1925 edi- 
tion contains Supplementary Notes by Mr. Justice Felix 
Frankfurter. (Professor Mason does not mention this sec- 
ond edition but instead an edition of 1933? published by 
Hale, Cushman & Flint, which edition I have not seen.) 
Also in 1914 F. A. Stokes & Company issued, and in 1932 
the National Home Library Foundation reissued, also under 
the name of the Justice, and with a Preface by Norman 



xv ui the words of 

Hapgood, Other People's Money and How the Bankers 
Use It Two earlier books bearing the Justice's name were 
privately printed in 1894-96 and 1907. (These books I 
have never seen, and know only from references to them in 
Professor Mason's works on Justice Brandeis.) 

In addition to these two books there further appeared 
selections and extracts from the Justice's papers in the 
following works: 

De Haas, Jacob. Louis D. Brandeis: A Biographical 
Sketch. Bloch Publishing Co., New York, 1929. The 
volume contains the "full text of his [Brandeis'] Ad- 
dresses [on Zionism]" delivered from 1912 to 1924. 

Flexner, Bernard. Mr. Justice Brandeis and the Uni- 
versity of Louisville. Privately printed by the University 
of Louisville in 1938. 

Fraenkel, Osmond K, Editor. The Curse of Big- 
ness. The Viking Press, New York, 1934. 

Goldman, Solomon, Editor. Brandeis on Zionism. 
Prepared for publication by Abraham G. Duker and 
Carl Alpert and published by the Zionist Organiza- 
tion of America with an Introductory Note by Judge 
Louis E. Levinthal and a Foreword by Justice Frank- 
furter. Washington, D.C., 1942. 

Lief, Alfred, Editor. The Social and Economic 
Views of Mr. Justice Brandeis. Published by the 
Vanguard Press with a Foreword by Professor Charles 
A. Beard. New York, 1934. (Mr. Lief's The Brandeis 
Guide to the Modern World, published by Little., 
Brown & Co., Boston, 1941, did not come to my at- 
tention until after this volume was completed. While 



Justice "Brandeis * 

our compilations are unavoidably similar in some re- 
spects, they diverge sufficiently not to render, I hope, 
my effort superfluous.) 

Lives of and Tributes to the Justice and expositions of 
his views that I have read include among others the fol- 
lowing: 

Analyticus [James Waterman Wise]. Jews Are Like 
That! Brentano's, New York, 1928. 

De Haas. Listed above. 

Frankfurter, Felix, Editor. Mr. Justice Brandeis. 
Yale University Press, with an Introduction by Justice 
Holmes. New Haven, 1932. 

Goodhart, Arthur L. Five Jewish Lawyers of the 
Common Law. Oxford University Press, London- 
New York-Toronto, 1949. 

Jackson, Justice Robert H. "Louis D. Brandeis." 
The Jewish Frontier, July, 1943. 

Levinthal, Louis E. ''Louis Dembitz Brandeis." 
American Jewish Year Boofe, 1942-43. 

Lief, Alfred. Brandeis: The Personal History of an 
American Ideal Stackpole Sons, New York-Harris- 
burg, Pa., 1936. 

Mason, Alpheus Thomas. Brandeis: Lawyer and 
Judge in the Modern State. Princeton University Press, 
Princeton, 1933. Republished in 1936 with a Foreword 
by Norman Hapgood by the National Home Library 



xx . the words of 

Foundation under the abbreviated title Brandeis and 
the Modern State. 

The Brandeis Way: A Case Study in the Work- 
ings of Democracy. Princeton University Press, Prince- 
ton, 1938. 

Bureaucracy Convicts Itself: The Ballinger-Pinchot 
Controversy of 1910. The Viking Press, New York, 
1941. 

Brandeis: A Free Man's Life. The Viking Press, 
New York, 1946. 

Harvard Theological Review, December, 1941, 

Opinion, A Journal of Jewish Life and Letters. 
November, 1941. 

Proceedings of the Bar of the Supreme Court of the 
United States and Meeting of the Court in Memory 
of Associate Justice Louis D. Brandeis, December 21, 
1942. Published in Washington, 1942. 

The New Palestine, November, 1941. 

All of the above Lives contain copious extracts from the 
oral and written words of Justice Brandeis. All of them put 
me under obligation, more particularly so Professor Mason 
and his A Free Man's Life, in which he gives numerous 
quotations from the Justice's unpublished letters. 

I am indebted to the Justice himself for the material to 
be found in this volume under the following headings: 
Abstract Thinking, A Day's Work, Amendment, American 
Jewish Community, Angels and Devils, Anti-Semitism and 
the Nazis, Bible, Chosen People, Benjamin V. Cohen, 
William O. Douglas, God's Presence, God's Purpose, His- 
tory, Immortality of the Soul, Jewish Festivals, Joiners, 



"Justice 'Brandeis 

Messiah, Miracles, Neutrality, Practical Men, Punctuality, 
Radicals and Conservatives, Resurrection, Revelation, 
Theodore Roosevelt and Woodrow Wilson, Sabbath, 
Scientists and Theologians, Specialization, Unwieldy Com- 
mittees, White Paper on Palestine, and Zionism. Ever so 
often during my visits to the Brandeis home, when the busi- 
ness that brought me there was at an end and the hour the 
Justice put at my disposal had not yet run out, he would 
allow me to draw him into a discussion of various Jewish and 
religious problems that I knew he had not dealt with else- 
where. I never took notes in his presence but made it a 
practice to record what he had said at the earliest possible 
opportunity. I am confident that I have reproduced his views 
faithfully, and perhaps also his language if my memory has 
not played me false. 

The piece entitled American and Jew immediately fol- 
lowing consists of excerpts from articles I previously pub- 
lished and of which I have made mention above. 

It remains only for me to express my deep gratitude to 
the ever faithful and competent Mrs. Henry Baum for 
preparing the manuscript. 



Solomon Goldman 



VERNON TOWNSHIP 
FEBRUARY 17, 1952 



PART ONE 



JUSTICE BRANDEIS 
AMERICAN AND JEW 



Those who enjoyed the privilege of seeing Justice Brandeis 
at close range could not fail to be struck by the 
spontaneous, contagious optimism of the man. It was not 
a mood; it was not stimulated by the urgency of causes 
or evoked by the despair of their advocates. His optimism 
flowed from the inner being of the man. 

I was never more impressed with it than when, in 1938, 
I came to the Brandeis home with one of the country's 
eminent citizens, a religious leader of high repute, Mr. 
Brandeis' junior by several years. The man leaned heavily 
on a cane. His old age trod falteringly. He relaxed into his 
chair hopelessly, and soon began to expostulate on the evils 
of the times and to moan in sheer helplessness against the 
dark impasse of our civilization. 

"I cannot agree with you/' interjected Justice Brandeis, 
and the words sounded natural "I cannot agree with you. 
We are moving on. There is much to be done, of course, but 

* 3 



4 the words of 

I am very optimistic. What we need . . ." Here the Justice 
spoke concisely, logically, almost mathematically, of what 
might be done in the United States and elsewhere to 
fashion the shape of things to come. I thought of the 
tribute paid him on the occasion of his seventy-fifth birth- 
day by the man who knew him better than most men. 
Justice Holmes then wrote: ''In the moments of discourage- 
ment that we all pass through, he always has had the happy 
word that lifts up one's heart. ..." 

* 

There was in Justice Brandeis that elusive something 
which set him apart, which made men hold their breath 
when in his presence. For here was a realist, ruthless arith- 
metician, stubborn analyst, and scientific materialist who 
dealt all his life with business, money, unions, trusts, and 
monopolies, and who, in all his adult life, had never come 
under the direct influence of religion, who may perhaps be 
best described as a saint. Here was a Jew who was reared 
with little knowledge of his people, who rarely felt the sting 
of anti-Semitism, who, as a youth, was accepted by the best 
families of blue-blooded Boston, who yet became the most 
optimistic and enthusiastic Zionist on this side of the 
Atlantic. Somewhere in the unriddling of this paradox will 
be found the essence of Mr. Brandeis' being, the quality 
of his personality. 

* 

The passion for freedom, some of Mr. Brandeis' biog- 
raphers suggest, is in the Brandeis blood. Unfortunately, 
they limit it to the immediate family. They record the fact 
that his maternal grandfather participated in the Polish 
uprising of 1830 and that his father and uncle, Lewis Dem- 
bitz, though Southerners, were on the side of the Union. 
The biographers have forgotten a verse in Leviticus reading 
"And ye shall proclaim liberty unto all the inhabitants 



Justice 'Brandeis -5 

thereof." They have overlooked numerous chapters in 
Isaiah and the Psalms, as well as the whole of the prolonged 
and glorious struggle for freedom of conscience of the 
people from which Mr. Brandeis sprang. It is not amiss to 
point out, when speaking of Mr. Brandeis, that the one 
little people in antiquity that bled for its freedom with aban- 
don and for two centuries fought undaunted one of the 
most powerful military machines the world had ever known, 
was the Jewish people. Statues of Roman emperors, symbol 
of Roman superstition, autocracy and dictatorship, were 
worshiped the world over, but not in Judea. 



Though the home of young Brandeis' parents had lost 
contact with the Jewish world, it was not wanting in echoes 
and reminiscences of Jewish tragedy, grandeur, and aspira- 
tion. Long before the Justice, members of his family 
dreamed Messianic dreams and envisioned prophetic 
Utopias. There were Brandeises who had been martyred 
for the faith and Dembitzes who had followed the dead-end 
trails blazed by Sabbatai Zevi and Jacob Frank. Young 
Brandeis listened with rapt excitement to the wondrous 
legends of Rabbi Loewe, a distant ancestor of the family, 
and tales of grief, hope, and disillusionment which his 
Uncle Lewis would tell He did not understand all he 
heard. The mise en scene was strange, the figures exotic, the 
action mysterious, but there remained in the subconscious 
vague recollections of Jews anxious for freedom and wait- 
ing for a Messiah. It is not improbable that these recollec- 
tions occasionally streamed into the consciousness of the 
maturing Brandeis. 

Mr. Brandeis 7 mother, daughter of a Polish rebel, and 
descendant of men who preserved their dignity and in- 
dividuality against the cruelty and violence of princes and 
counts, carried food and coffee to an encampment of 



6 the words of 

Northern soldiers. That she took young Louis with her 
was only in consonance with a tradition bidding Jewish 
parents habituate their young in the practice of mitzvot, 
"good deeds/' 'Train up a child in the way he should go: 
and when he is old he will not depart from it." 

The mother gave the boy who trudged along at her side 
a good training in the mitzvah and value of freedom. Often 
Louis asked numerous questions: What were the soldiers 
doing at the encampment? What were they fighting for? 
Why did people want slaves? Why were some people's 
skins black? Did black skins protect people against suffer- 
ing pain? Could a black skin bleed? Did being black out- 
side also mean being black on the inside? Could a black boy 
learn to read and write? Does a black boy love his mother? 
Do black boys like to play? Why did you, Mama and 
Papa and Uncle Lewis Dembitz, leave Europe and come 
here? Were there no houses there? What was Grandpa 
like? I wonder whether anybody brought him coffee and 
food when he was a soldier. 

Young Louis was stimulated as he tried to understand 
the answers that came from the patient, kind lips of his 
mother. The tall, slender lad sometimes lingered behind 
meditating and sometimes rushed ahead impatiently. He 
walked, mused, and whistled as if his young heart and mind 
were unable to contain all that his mother had told him, as 
if the future people's attorney was chafing to do something 
about it all. 1 

It was good he was whistling, for this whistling saved 
him for the great struggle for freedom and democracy to 
which his life was to be dedicated. When he was but a youth, 

1 This account of mother and son is not imaginary. That the boy 
Louis occasionally accompanied his mother on her hazardous 
missions I learned from Mrs. Brandeis; that the Justice was moved 
by this account of his mother and himself, when he first read it in 
The New Palestine, I heard from one of his cousins in Washington. 



Justice 'Brandeis 7 

his parents sent him to Dresden, Germany, to con- 
tinue his education there. (Americans for a long time- 
even the liberty-loving "Forty-Eighters" deferred to Ger- 
many in matters educational,) One evening young Bran- 
deis, while a student in a Dresden school, forgot the key 
to his room, and upon his return to the dormitory, whistled 
to arouse his roommate. On the morrow he was severely 
disciplined. Mr. Brandeis informed his parents that he had 
had enough of Kultur. 'This made me sick/' he reported 
many years later. "In Kentucky you could whistle. . . ." 

* 

His native gifts, his uncanny grasp of figures, his easy 
penetration into the intricacies of big business, his unflag- 
ging capacity for work, his meticulous orderliness, his 
magnetic personality, brought him a large and lucrative 
clientele. The wealthiest corporations, the most affluent 
citizens, sought as their lawyer this tall Lincolnesque 
Kentuckian who was sure to win their cases. After a 
decade or more, Mr. Brandeis was confronted with the need 
of making a difficult decision. He was coming into wealth. 
He was moving in the circles of the mighty. He was a 
welcome guest in the most elegant parlors, where affluence 
and affability were the most prized of virtues. He saw him- 
self drawn into a circle where desire was fanned and the 
spirit restrained, license encouraged and liberty diluted. 
Things were preferred to ideas, money to men, and power 
to character. Mr. Brandeis discovered that it was embar- 
rassing to whistle. There was no Junker Schutzmann to 
stop or punish him, but it was just not being done in the 
elegant parlors of Boston. 

He was ill at ease. There were the wistful tales of mother 
on those lonely marches to the encampment of soldiers; 
there were the challenging utterances of the aged Emerson, 
whom he had heard as a student. There was the Puritan 



8* the words of 

heritage, there was the intimate knowledge of the Consti- 
tution, of the Declaration of Independence, and there were 
some vague recollections of stories Uncle Dembitz had told 
about the Maccabees. And Mr. Brandeis decided: "I have 
only one life to live and it is short enough. Why waste it 
on things that I don't want most? And I don't want money 
or property most. I want to be free. It is not only tyrants 
who enslave men; property, money and things can become 
the implacable foes and thieves of freedom. Freedom sits 
better with a spare diet than with fashion/' Perhaps young 
Brandeis had heard the adage from the traditional service 
in which Uncle Dembitz was so expert Marbeh nechasim, 
marbeh deagah, "Increase possessions, increase worry." 

* 

Mr. Brandeis had made his decisionhe was to be free. 
But free to what end? Was he to retire to the solitude of 
his own study and watch society drift to chaos? Was he 
to escape to Tarshish and leave Nineveh to perish because of 
its iniquities? "What shall it profit a man if he save him- 
self and see the whole world go lost?" Noah in Heaven, so 
the Midrash weaves a fancy tale, regales the righteous with 
accounts of his exploits in the building of the Ark and how 
he escaped from the deluge that overwhelmed his con- 
temporaries. "Little merit, old Noah," Moses frowns. "You 
saved yourself how about your generation?" 

Mr. Brandeis changed the nature of his practice, re- 
stricted his manner of living, only to help his fellow-men. 

* 

The American adventure was not intended merely to pro- 
vide fortunes for the few. It was meant to bring liberty and 
happiness to the many. We were not exploiting the conti- 
nent for the purpose of streaming it with rails and silhouet- 
ting it with skyscrapers. The Founding Fathers wanted to 
build men. What good is rapid material development if it 



Justice 'Brandeis -9 

leads to the stultifying of mind and soul? What good is the 
vote in the hands of hungry, ignorant, abject, timid crea- 
tures? What good is citizenship, if it means meager oppor- 
tunity for the child and no security for the old? 

When Mr. Brandeis went out to his brethren toward the 
end of the last century, he saw conditions that appalled 
and saddened him. He could not reconcile the intent of 
the Constitution and the Declaration of Independence, and 
the purpose of the heroic struggle of the country's pioneers, 
with what his eyes beheld. On the one side, unlimited 
wealth; on the other, economic slavery that was crushing 
the very desire for freedom. What was the advantage of 
American democracy? 

* 

Mr. Brandeis soon realized that political liberty was not 
enough. The Fathers had only won a major conflict; they 
had not won the war. That was left to posterity. "We must 
fight/' Mr. Brandeis wrote, "for economic and industrial 
freedom even as they had fought for political freedom, 
for in a machine age, in a complex industrial society it is 
far more indispensable even than political liberty." And 
as the "people's attorney/' Mr. Brandeis continued the war 
of the Fathers. Our younger generation, that hears only of 
the recluse Supreme Court Justice, so proverbially wort- 
karg, cannot possibly visualize the Brandeis of forty or 
forty-five years ago, the flaming spirit, the undaunted re- 
former, employing the language of the prophet instead of 
that of the jurist. Mr. Justice Holmes remembered him as 
having that "crusading spirit, declaiming like one of those 
upward and onward fellows.' 7 Mr. Brandeis was merciless 
in his attack on the control exercised by investment bankers 
over railroads, public service industry, banks, life insurance, 
and trust companies. He pointed to the increasing number 
of interlocking directorates as the root of many evils. "It 
offends/' he said, "laws human and divine." 



40* the words of 

Mr. Brandeis stood no more in awe of wealth than did 
Amos of Tekoa, and spoke with as little restraint as did 
Micah of Moreshet. There was prophetic tradition back of 
him and the fire of prophecy inside him. In his preface to 
the first volume of his History of the Jewish People, Renan 
writes: "In the realm of the intellectual and moral, Greece 
showed one deficiency but it was considerable. Greece 
despised the humble and felt no need for a god of justice. 
Its philosophers were dreaming of the immortality of the 
soul but were tolerant of the evils of this world. . . . The 
fervent genius of a small tribe established in a remote 
corner of Syria seemed to have come into the world to 
make up for this defect in the Hellenic character. Israel 
could never be satisfied to see the world badly governed 
under the government of Him whom they knew to be just. 
Its sages experienced a paroxysm of wrath in the presence 
of the abuses in which the world abounds. 'A wicked man 
dying old, rich and in peace, sent a twitch of pain and 
anger to their hearts/ " Poverty in the midst of plenty, 
economic slavery in a land with a democratic heritage, sent 
a twinge of pain and anger to the heart of Louis D. Bran- 
deis. He was saddened when he reflected that the progress 
of science, the growth of invention, the development of 
industry, were not making for more happiness or freedom. 
"We are generating new forces without regard to cor- 
responding controls. These forces are crushing the very 
spirit of freedom. There is frightful human waste. American 
democracy is being betrayed/' Something was happening 
that was converting all the blessings of science and in- 
dustry into a curse. 



Mr. Brandeis drank deep from the fountain of liberty. 
He studied and mused long over the ideals of those who 
fashioned the republic. "How can we preserve our institu- 



Justice 'Brandeis i i 

tions and our ideals?" he asked, and even as Hillel or 
Rabbi Akiba, he answered, "Through the law." So he 
searched the law of the land and found that the freedom 
and opportunity of the individual were its highest promise. 
He was further instructed that the best laws were not 
"those by which men become more prosperous, but those 
by which they become most virtuous in character and best 
fitted for citizenship/ 7 Mr. Brandeis concluded that the 
great achievement of the English-speaking people is the at- 
tainment of liberty through the law. Abundant life, a 
Pharisee had said, was the purpose of the law. And a 
younger colleague added "The law aims to refine man." 

# 

Systems and laws can change far more rapidly than 
human beings. Means of transportation can be outmoded 
more rapidly than habits of life. It takes more wisdom to 
build a new heart than to invent a new radio. Science has 
made progress in the things man uses. Science, religion, 
philosophy, and art have effected little change in the things 
by which men live. Progress depends on knowledge, wis- 
dom, discipline, on laws, not only the laws man makes but 
the laws men obey. "Progress," Justice Brandeis said, "was 
slow. It required groping, experimentation. Therefore, 
knowledge was necessary, and therefore nothing happened 
that could wholly shake [my] faith." 

* 

Anti-Semitism obscured the grandeur of Zionism and, as 
is the case with all ideals, its essence was tarnished by the 
exigencies of fulfillment. Assimilationists and visionaries 
saw Zionism either as a movement of escape or as an extra 
encumbrance on the road to universalisrn. Idealists despised 
it because of its political entanglements. Justice Brandeis 
came to it because all his life he had been an uncompromis- 
ing realist. He saw the world as it is, which means that he 



4 2 the words of 

examined, in any given situation, all of the facts insofar as 
it was humanly possible to do so. The jumping board for 
his intellectual efforts was not a formula or postulate but a 
set of facts. He never theorized and rarely gave utterance 
to an abstract principle or cosmic generalization. It was not 
due, as some would want us to believe, to an absence of 
faith or deficiency of style. Justice Brandeis' life's work is 
incomprehensible without an absorbing faith in definite 
principles and his "gift of happy phrasing was not incom- 
parable to Holmes'/' If Brandeis did not indulge in grandi- 
ose, philosophic statements about the universe, it was be- 
cause, in his opinion, every such statement would have 
had to be based on all of the facts about the universe. 
Experience had taught him that it required endless toil and 
time to gather the data relative to the simplest human prob- 
lem, let alone the cosmic. His Zionism consequently did 
not derive from theory but from the Jewish people. 

What were the facts respecting Zionism which this 
realist could not possibly dismiss once they had come to 
his attention? The first discovery Brandeis made was the 
Jewish people. "It is of the nature of our law," he had said, 
"that it has not dealt with man in general, but with him in 
relationships." A Jew, too, he came to understand, had to 
be dealt with in such terms. These relationships were not 
only economic or political in character, but also social, 
psychic, hereditary. It was not likely that in the real world 
any man could be found suspended in isolation, after the 
manner of Melchizedek, without father or mother, without 
beginning or end. The individual, to be properly understood 
in all of his relations, had to be seen also as the confluent 
sum of the consciousness of, or, in the words of Dewey, as 
nature's experiment with the qualities of the group. Brandeis 
was persuaded by the "logic of realities" that what was true 
of all human beings was most probably applicable to Jews. 
Jews, too, he decided, belonged to a group or people. 



Justice "Brandeis 43 

Now, it is the nature of a fact to be so obvious and simple 
that only the genius can observe it, grasp it and hold on to 
it in its obviousness and simplicity. Mediocre minds tend 
either to distort it or overlay it with fiction or lose it alto- 
gether. What, for example, is more obvious than the exist- 
ence of millions of men, women and children over the face 
of the earth to whom the myriad of millions of their fellow- 
men refer as Jews. The reference is ever immediate and 
direct and not the result of effort or inquiry. It is not dis- 
carded even when the discovery is made that the person 
designated as a Jew is without any religious faith or is a 
member of a Christian Church. Normally, that would seem 
to constitute ample proof of the existence of a Jewish folk 
or people. And yet it is amazing how many practical men, 
bankers, industrialists, merchants, and not a few philos- 
ophers and rabbis managed to miss the point. It required, 
among American Jews, a Brandeis to recognize it. 

It was the recognition of this simple but ineluctable fact 
that led Justice Brandeis to Zionism. Genius that he was, 
he appreciated that it was no mean discovery. When later 
he read Herzl, he concluded that the major contribution 
of the father of political Zionism to the understanding of 
the Jewish problem was "the recognition of the fundamental 
fact that the Jews are a people, one people." Still later, he 
learned that the Jews had known it through their long 
history but that "it had been submerged by the multiform 
individual struggle for Jewish existence/' 

It was fortunate for Zionism that Brandeis had discovered 
simultaneously the Jewish people and both its precious herit- 
age and unparalleled experience. For it was the Jewish 
laborer who brought him to Zionism, and it was Labor that 
in a large measure gave his Zionism that glow and passion 
of the last several years of his life. When in 1914 he ac- 
cepted the chairmanship of the Zionist Provisional Emer- 
gency Committee he said, with the humility so character- 



i4 the words of 

istic of his whole life, "I feel my disqualification for this 
task. Throughout long years, which represent my own life, 
I have been to a great extent separated from Jews. I am 
very ignorant in things Jewish." What gave him the courage 
to assume the responsibility was that he found among Jew- 
ish laborers qualities of justice and democracy, a deep moral 
feeling, a deep sense of the brotherhood of man, and high 
intelligence. 

At one of the many heated sessions of the Committee on 
Arbitration of the International Ladies' Garment Workers, 
a pale-looking laborer with high forehead and eyes full of 
indignation hurled a mouthful of strange words at one of 
the employers. The meaning of the words escaped Brandeis, 
but not the crimson flush that covered the employer to his 
ear lobes. When the meeting was adjourned, Brandeis, upon 
inquiry, learned that the magic words which had had such 
instantaneous effect were a quotation from the Book of 
Isaiah. The pale-faced young man had quoted: "What mean 
ye that ye beat my people to pieces, and grind the faces of 
the poor . . . The spoil of the poor is in your houses/' 
Brandeis was stunned. A disbelieving laborer from whose 
lips the Hebrew of Isaiah rolled off with such ease and 
earnestness, a stubborn employer whose heart was pierced 
quickly and painfully by these words, was a novel experi- 
ence indeed. He could not drive it from his mind. There 
was more to it, he felt certain, than appeared on the surface. 
The impression the young man had made, he decided, was 
not due to a display of erudition. Neither could the refer- 
ence to Isaiah have been an isolated incident. It seemed to 
him to indicate a habit of life and a common background 
for the employer and employee. 

Brandeis was soon convinced that he had guessed right. 
At subsequent meetings, in the midst of a heated harangue, 
he would hear a man shout with singular emphasis, "Ihr 
darft sich shemen! Passt sich dos far a idinT (Shame on 



justice Brandeis i 5 

you! Is this conduct worthy of a Jew?) Brandeis was dis- 
turbed. About that time, December 10, 1910, the Jews of 
Boston were surprised to see the name of Louis Dembitz 
Brandeis appended to the following statement: 

"I have a great deal of sympathy for the [Zionist] move- 
ment, and I am deeply interested in the outcome of the 
propaganda. These so-called dreamers are entitled to 
the respect and appreciation of the entire Jewish 
people. ... I believe the Jews can be just as much 
of a priest people today as they ever were in the 
prophetic days." 

It was his first observation on the Jewish people. It was 
intuitive, a leap in the dark, the pull of heredity. The cau- 
tious Brandeis had not yet examined the facts, but it was 
inevitable that he should. Isaiah at an arbitration table! 
What was this unique background that had its hold both 
on employer and employee? The matter merited and im- 
portuned investigation. 

He began to study his people. He returned to the Bible 
with renewed interest, and saw it in a new light. It was no 
longer for him a catechism of outmoded dogmas but the 
record of a people's striving to know and be itself. A Chris- 
tian friend recalled that when Mr. Brandeis first appeared 
on the Zionist platform his face "shone with an inner light 
that transformed his whole being." It may be added that 
he was similarly transformed when he discovered the affinity 
between his own views and the prophetic-Pharisaic amal- 
gam. 

Need any reader of Brandeis be told how that pragmatic 
idealist reacted, say, to the following teachings or common- 
places of Judaism: Education must continue throughout 
life. Neither advanced age nor illness relieved a man of his 
obligation to learn. Study superseded everything. The whole 
system of Halachah is in essence factual and not conceptual. 



i 6 the words of 

Judges must be sticklers for facts as were Rabbi Johanan ben 
Zakkai and his successors. To qualify as a member of the 
Sanhedrin it was not sufficient that the candidate be expert 
in the law but master of all knowledge attainable as well. 
Utopia was not a spatial but a temporal concept. It was not 
another Arcadia to which one might buy passage, but an 
"end of days" to be achieved only by the sweat and toil of 
the human race. In the scale of values works stood higher 
than faith, and discipline than preachment. A poor man 
must not be favored in a trial. Society was best founded on 
objective and definitive justice rather than on subjective 
and whimsical mercy. The individual was not more impor- 
tant than society nor society than the individual, it being 
imperative to balance the freedom of the one against his 
duties to the other and vice versa. Read not "the writing of 
God was graven [harut] on the tables [of the Law]/' but 
that the writing of God on the tables signified freedom 
[herut]. None is free but he who is occupied with the law. 
No, the young man's quotation at the arbitration table 
had not been an accident. It was part of a heritage that 
embodied the life experience, dreaming, and thinking of 
the people. There was such a people, a Jewish people. They 
lied who tried to deny its existence. The "people's advocate" 
became also the Jewish people's advocate. 



Mr. Brandeis will not be remembered because of the 
originality of his philosophy. He leaves behind no ponder- 
ous, iron-clad system of irrefutable and imperishable 
theories. The man was too modest and too practical for 
such conceits. Then again his faith had never failed him 
and his world had never become a "waste land" strewn with 
broken images and withered stumps of time. He gladly 
accepted the eternal verities. The Prophets, Tom Paine, 
Thomas Jefferson, the Declaration of Independence, the 



Justice 'Brandeis * l 7 

Constitution, and Abraham Lincoln sufficed him. He was 
not in search of the nebulous trail of ultimates. He did not 
believe that our society was diseased because of a want of 
philosophy. Neither would he concede that our spiritual 
disorganization and communal dislocation could be reme- 
died by some new-fangled ideology or ex-machina creed. 
He was of the opinion that the Jewish, Christian, American 
heritage contained the wherewithal with which in due time 
to heal and reconstruct society. Mr. Brandeis will be re- 
membered because he insisted that fine execution was no 
less important than speculation and the techniques of 
implementation were no less essential than faith itself. His 
never-failing optimism derived from this assumption, and 
from his own ability to devise social controls for social 
amelioration. 

Mr. Brandeis was the typical and rarest representative of 
his time. He was of the world, modern, and of the scientific 
temper, but he also remained distant and aloof, and never 
became the slave of mechanical devices. Indeed, Mr. Bran- 
deis was never the slave of anything or anyone. No passion, 
habit, hobby, or caprice could claim him. He was the master 
of all that assailed or beckoned or surged through him. In 
the realm of his being he was as absolute as the ruler of a 
totalitarian state. The French poet, Vigny, wrote that 
Destiny directs one half of a man's life, and that his char- 
acter does the other half. Of Mr. Brandeis, one is tempted 
to say that his character was the arbiter of his destiny. And 
this perhaps was the secret and essence of the man. 

Mr. Brandeis was as noble a Pharisee as ever lived. He 
adhered to a Shulhan Aruch as piously and unfalteringly as 
did Rabbi Akiba, Rabbi Joseph Karo, or Rabbi Moses 
Isserles. "Jews," he once asserted almost in the very language 
of these men and with the earnestness that characterized 
them, "who know the ritual law should understand that 
there can be no compromise between clean and unclean 



18* the words of 

things/' In his later years he frequently spoke with rever- 
ence of "our Torah." Shiftless men, the playthings of desire 
and devotees of the ephemeral, gaped in wonderment at his 
unswerving fidelity to his code of conduct. Superficial 
modernists, men of easy conscience, dilettanti, and cynics 
mocked his attention to detail, his stubborn insistence on 
efficiency, and his adamant resistance to compromise. But 
this was the man. No appraisal of his career, or evaluation 
of his character, or appreciation of his personality are con- 
ceivable or possible without due consideration of this Phari- 
saic, puritanic, Gibraltar-like quality of his. 

Mr. Brandeis was a modern of the moderns. He followed 
with absorbing interest the development of science, expan- 
sion of industry, and increase of civilization. But he was 
apprehensive of what men generally describe as progress. 
He had read in the Psalms: "Except the LORD build the 
house they labor in vain that build it." He had heard Emer- 
son say that "No institution will be better than the insti- 
tutor." And he concluded that science was a fraud, industry 
a curse, and civilization a misnomer, if they did not serve 
to make men free. For Mr. Brandeis was not a pagan. Intel- 
lectual enjoyment and aesthetic delight when divorced from 
goodness were not for him the summum bonum. 

In this regard too Mr. Brandeis was Hebraic, in the 
prophetic tradition. The existence of slums darkened for 
him the brilliance of universities and the splendor of 
museums. The skill of the machine and the magnitude of 
production were no atonement for the exploitation of labor. 
Philosophy, art, science, industry, government were not to 
develop, as it were, in a vacuum unrelated to one another 
and unconcerned with society. They were to function for 
the welfare of man. Progress was not that which was con- 
temporary or new or ingenious or the latest mechanical 
device. Progress was that which was consistent with "human 
truths" and human freedom. 



'Justice Erandeis 19 

Mr. Brandeis' whole career is an object lesson in freedom. 
He lived as if he had all his days set out to prove freedom's 
meaning, purpose, and beauty. He learned early that free- 
dom consisted not solely of the removal of external au- 
thority but in an intelligent exercise of the will. It was not 
the gift of the gods but the fruit of diligent and patient 
discipline. "There were more things which Diogenes would 
have refused, than there were which Alexander could have 
given or enjoyed/' Men were free if they could maintain 
their conscience arid adhere to their code against the pres- 
sure of immediate desires, if they could cultivate their high- 
est faculties at the expense of the lower. As long as we are 
enmeshed in tangled thickets of sensual and conventional 
living we were not free. Mr. Brandeis desired freedom more 
than anything in life and he achieved it through the exercise 
of the will. He rose above the temptations that compass us 
on every side. He lived in Spartan simplicity from convic- 
tion. No force on earth could make him alter his way of 
life. The social whirl of Boston or Washington saddened 
him. It never attracted him. Not that he was unsocial, cool, 
ascetic, or even austere. Only those who did not know him 
or those who could not resist the pull of fashion thought of 
him in that light. Those who saw him at close range found 
him conversable, warm, simple, and gracious. A child felt 
as much at home with him as did the sage. His life was 
ordered and disciplined, not because he was by inclination 
or temperament a hermit or recluse. Quite the contrary is 
true. Mr. Brandeis desired to live abundantly. But he real- 
ized that life could not possibly be abundant unless it was 
free. 

It was his love of freedom and even more his possession 
of it that made him the consecrated American he was. His 
patriotism reached down to the roots of his being. For 
America was not only bread, raiment, and hearth; it was 
"the world's best hope," the experiment par excellence in 



20* the words of 

democracy, i.e., in freedom. Mr. Brandeis had taken long 
drafts from Roger Williams, Jefferson, Lincoln, Whitman. 
He understood what the first and later Fathers of the Re- 
public, had taken the core of Americanism to be. They had 
not come here, they had not fought England, they had not 
set brother against brother in order that we might become 
the richest and most powerful nation on the face of the 
earth. They toiled and bled that we might enjoy the bless- 
ings of liberty. Mr. Brandeis followed the thorny path. He 
risked all, the distinguished career he had achieved at an 
earlier age than most men, the friends he had made, the 
quiet he loved, and his very reputation to recapture for 
America's masses the freedom that unparalleled industrial 
expansion had deadened. For years he was a target of abuse, 
calumny, hatred. Men of power and prominence rose up 
against him to devour him. Of him, alas for the interested 
perverseness of man, five United States Senators wrote, 
"One whose reputation for honesty and integrity among 
his associates has proved to be bad, which reputation has 
been justified by his own conduct." Mr. Brandeis did not 
flinch; he suffered ecstatically as any martyr does for his 
faith. He was an American, and of Americans Washington 
testified that their love of liberty was interwoven with every 
ligament of their hearts. 

It was this traditional conception of America and his deep 
attachment to freedom that brought him closer to the Jew- 
ish people. No sooner did he come face to face with Jews 
than he grasped the uniqueness of their history. Here was a 
strange phenomenon, a burning bush that was not con- 
sumed, a despised and tormented people that chose to live, 
to live and be itself. When the true cause of Israel's martyr- 
dom flashed upon him, he became a resolute and confident 
Jew. For the history of Israel is eccentric and its martyrdom 
vain if it is not one long struggle for freedom. The Jew 
is not genuine if he is not the bravest soldier on the battle- 



'Justice 'Brandeis 2 l 

field of liberty. His experience is unilateral, restricted, writ- 
ten into one covenant, that kings and rulers, mobs and 
majorities shall not lord it over the consciences of their 
brethren. 

After turning the pages of the Bible, Graetz, and Herzl, 
Mr. Brandeis realized that his people's huge affliction was 
the result of continuous resistance to world trusts. Because 
Israel was small and weak it was not yet sufficient reason 
why it should be swallowed up by the many and mighty. 
Sheer bigness was a curse. God had called Amos from Tekoa 
and Lincoln from Gentryville. Mr. Brandeis recognized in 
the shepherd of Tekoa the spiritual father of the rail-splitter 
from Gentryville. Lincoln unsheathed the sword to preserve 
justice and freedom. Israel suffered martyrdom to maintain 
its cause and conscience. 

It was a great day for Mr. Brandeis when he discovered 
that Americanism and Judaism were of one pattern. 



PART TWO 



THE WORDS OF 
JUSTICE BRANDEIS 



ABNORMAL AND PRIVILEGED 

In every society there must be some who are abnormal, and 
some who are blinded by privilege. One cannot properly feel 
even indignation at either. They are rather subjects for sym- 
pathy. But we must seek steadily to nullify their influence, 
and limit their numbers. 

AB SOLUT E 

Nobody ought to be absolute; everybody ought to be 
protected from arbitrariness and wrong decisions by the 
representations of others who are being affected. 

ABSOLUTE POWER 

The objections to despotism and monopoly are funda- 
mental in human nature. They rest upon the innate and 
ineradicable selfishness of man. They rest upon the fact that 
absolute power inevitably leads to abuse. 1 

1 See also Monopoly. 

25 



26* tbe words of 

ABSTRACT THINKING 

Abstractions are frequently attractive, ingenious, and 
valuable. But ever so often abstract thinking borders on 
mysticism. Whenever that happens I have a feeling that 
reason rests and imagination takes over. 

A DAY'S WORK 

[5] I rise early because no day is long enough for a day's 
work. 

AGREEMENT 

Every agreement curtails the liberty of those who enter 
into it. 

AMENDING THE CONSTITUTION 

I see no need to amend our Constitution. It has not lost its 
capacity for expansion to meet new conditions, unless it be 
interpreted by rigid minds which have no such capacity. 
Instead of amending the Constitution, I would amend men's 
economic and social ideals. 

AMEND MENT 

A code of law that makes no provision for its amendment 
provides for its ultimate rejection. 

AMERICA 

America, dedicated to liberty and the brotherhood of 
man, rejected the aristocratic principle of the superman as 
applied to peoples as it rejected the principle when applied 
to individuals. America has believed that each race had some- 
thing of peculiar value which it can contribute to the attain- 
ment of those high ideals for which it is striving. America 
has believed that we must not only give to the immigrant 
the best that we have, but must preserve for America the 
good that is in the immigrant and develop in him the best 
of which he is capable. America has believed that in differ- 



Justice 'Brandeis 27 

entiation, not in uniformity, lies the path of progress. 2 ' It 
acted on this belief; it has advanced human happiness, and 
it has prospered. 

* 

[10] We have slipped back badly in twenty-Eve years, in 
order, security to life and property; in liberty of speech, 
action and assembly; in culture; and, in many respects, in 
morality. Father would have said: "Pfui." 

* 

We shall learn most by unprejudiced painstaking study 
of our own strengths and weaknesses; by enquiry into our 
own achievements and shortcomings. It is thus that we may 
best learn how great are the possibilities of high accomplish- 
ments in the future; what are the real dangers with which we 
shall be confronted. 



America, which seeks "the greatest good of the greatest 
number," cannot be content with conditions that fit only 
the hero, the martyr or the slave. 3 

America in the last century proved that democracy is a 



success. 4 



AMERICAN DEMOCRACY 

American democracy rests upon the basis of the free citi- 



zen. 5 



AMERICAN IDEALS 



6 



[15] What are the American ideals? They are the develop- 
ment of the individual for his own and the common good; 

2 Repeated under Differentiation Not Uniformity. 
8 Repeated under Greatest Good of Greatest Number. 
4 Repeated under Industrial Democracy and Thinking. 
6 Repeated under Financial Dependence. 
6 See also Conservation. 



28" the words of 

the development of the individual through liberty, and the 
attainment of the common good through democracy and 
social justice. 

Our form of government, as well as humanity, compels 
us to strive for the development of the individual man. Under 
universal suffrage (soon to be extended to women) every 
voter is a part ruler of the state. Unless the rulers have, in 
the main, education and character, and are free men, our 
great experiment in democracy must fail. It devolves upon 
the state, therefore, to fit its rulers for their task. It must 
provide not only facilities for development but the oppor- 
tunity of using them. It must not only provide opportunity, 
it must stimulate the desire to avail of it. Thus we are com- 
pelled to insist upon the observance of what we somewhat 
vaguely term the American standard of living; we become 
necessarily our brothers 7 keepers. 7 



Manhood is what we are striving for in America. We are 
striving for democracy; we are striving for the development 
of men. It is absolutely essential in order that men may 
develop that they be properly fed and properly housed, and 
that they have proper opportunities of education and recre- 
ation. We cannot reach our goal without those things. But 
we may have all those things and have a nation of slaves. 



We Americans are committed not only to social justice 
in the sense of avoiding things which bring suffering and 
harm, like unjust distribution of wealth; but we are commit- 
ted primarily to democracy. The social justice for which we 
are striving is an incident of our democracy, not the main 
end. It is rather the result of democracy perhaps its finest 

7 See also Brotherhood, Greatest Good of Greatest Number. 



'Justice 'Brandeis '2$ 

expression but it rests upon democracy, which implies the 
rule by the people. 8 

# 

Our American ideals cannot be attained unless an end is 
put to the misery due to poverty. 9 

AMERICANIZATION 

What is Americanizaiton? It manifests itself, in a super- 
ficial way, when the immigrant adopts the clothes, the man- 
ners and the customs generally prevailing here. Far more 
important is the manifestation presented when he substi- 
tutes for his mother tongue the English language as the com- 
mon medium of speech. But the adoption of our language, 
manners and customs is only a small part of the process. To 
become Americanized the change wrought must be funda- 
mental. However great his outward conformity, the immi- 
grant is not Americanized unless his interests and affections 
have become deeply rooted here. And we properly demand 
of the immigrant even more than this he must be brought 
into complete harmony with our ideals and aspirations and 
cooperate with us for their attainment. Only when this has 
been done will he possess the national consciousness of an 
American. 

AMERICAN JEWISH COMMUNITY 10 

[20] I have not given much thought to the future of the 
American Jewish community. Perhaps because I was sure 
that it will always be there. Assimilation will undoubtedly 
make inroads. But what of it? Have not persecution, con- 
version, and indifference claimed their victims? The charac- 
ter and fortitude of those who will survive will more than 

8 Repeated under Industrial Democracy. 

9 Repeated under Efficiency and Social Ideals, 

10 See also Noblesse Oblige. 



30* the words of 

make up for the losses the American Jewish community will 
suffer. 

AMERICANS 

There is in most Americans some spark of idealism, which 
can be fanned into a flame. It takes sometimes a divining 
rod to find what it is; but when found, and that means often, 
when disclosed to the owners, the results are often most 
extraordinary. 

AMERICAN STANDARD OF LIVING 

What does this standard imply: In substance, the exer- 
cise of those rights which our Constitution guarantees the 
right to life, liberty and the pursuit of happiness. Life, in 
this connection, means living, not existing; liberty, freedom 
in things industrial as well as political; happiness includes, 
among other things, that satisfaction which can come only 
through the full development and utilization of one's fac- 
ulties. 

AMERICA'S FUNDAMENTAL LAW 

America's fundamental law seeks to make real the broth- 
erhood of man. 11 

AMERICA'S INSISTENT DEMAND 

America's insistent demand in the twentieth century is for 
social justice. 11 

ANGELS AND DEVILS 

[25] Those who have given up the belief in witchcraft 
must be hard put to explain their continued belief in the 
existence of angels and devils. 

ANTI-SEMITISM AND THE NAZIS 

Prior to the advent of Nazism we used to think that anti- 
Semitism was the Jewish people's misfortune and the world's 

11 Repeated under Jewish Spirit and America. 



Justice TSrandeis 3 1 

disgrace. The Nazis have convinced many that anti-Semi- 
tism can also be a boomerang. 

ARE ITRATION 

I believe that arbitration is going to be a comparatively 
insignificant factor in the prevention and settlement of trade 
disputes. Arbitration implies and involves the shirking of 
responsibility by the chief parties to the dispute. The burden 
of the task of adjustment is shifted onto the shoulders of 
some alien tribunal. The result is that employer and work- 
man fail to get the discipline they ought to have, and they 
are prevented from obtaining that intimate insight into one 
another's needs and difficulties without which essential jus- 
tice is likely to be missed. 

But beyond that, the arbitrators are rather likely, from 
the very nature of their task, to hand down a wrong award. 
They may easily miss the heart of the difficulty, because 
they are not in the midst of the actual struggle. No, I do not 
anticipate any very great results, in the long run, from arbi- 
tration. . . . 

The best of all is ... strong unions and direct adjust- 
ment between employer and workmen. 

ARGUMENT OF FORCE 

Silence coerced by law the argument of force in its worst 
form. 12 

ARITH METIC 

Mellen was a masterful man, resourceful, courageous, 
broad of view. He fired the imagination of New England, 
but being oblique of vision merely distorted its judgment 
and silenced its conscience. For a while he triumphed with 
impunity over laws human and divine, but as he was ob- 
sessed with the delusion that two and two make five he fell 

12 Repeated under Freedom of Speech. 



32- the words of 

at last a victim of the relentless rules of humble arithmetic. 

Remember, O Stranger! 

Arithmetic is the first of the sciences and the mother of 
safety. # 

[30] Figuresa language implying certitude. 

ART 

Living among things of beauty is a help toward culture 
and the life worth-while. 

ARTIFICIAL LEGAL CONVICTION 

No instance has been found where under our law a fact- 
finding body has been required to give to evidence an effect 
which it does not inherently possess. Proof implies persua- 
sion. To compel the human mind to infer in any respect 
that which observation and logic tells us is not true inter- 
feres with the process of reasoning of the fact-finding body. 
It would be a departure from the unbroken practice to re- 
quire an artificial legal conviction where no real conviction 
exists. 

ARTISTS 

Though the work of the greatest artists may command the 
highest prices, their incentive has not been money. It has 
been the desire to achieve professional success. 13 

AVERAGES 

I abhor averages. I like the individual case. A man may 
have six meals one day and none the next, making an aver- 
age of three per day, but that is not a good way to live. 

BANKER-MIDDLEMAN 14 

[35] The investment banker has, within his legitimate prov- 
ince, acquired control so extensive as to menace the public 

13 Repeated under Money-making and Service. 
" See also People's Own Gold. 



Justice 'Brandeis 3 3 

welfare, even where his business is properly conducted. If 
the New Freedom is to be attained, every proper means of 
lessening that power must be availed of. A simple and effec- 
tive remedy, which can be widely applied, even without new 
legislation, lies near at hand: Eliminate the banker-middle- 
man where he is superfluous. 

BANKERS' ETHICS 

The organization of the Money Trust is intensive, the 
combination comprehensive; but no other element was rec- 
ognized as necessary to render it stable, and to make its dy- 
namic force irresistible. Despotism, be it financial or politi- 
cal, is vulnerable, unless it is believed to rest upon a moral 
sanction. 15 The longing for freedom is ineradicable. It will 
express itself in protest against servitude and inaction, unless 
the striving for freedom be made to seem immoral. Long ago 
monarchs invented, as a preservative of absolutism, the fic- 
tion of 'The divine right of kings/' Bankers, imitating roy- 
alty, invented recently that precious rule of so-called "Eth- 
ics," by which it is declared unprofessional to come to the 
financial relief of any corporation which is already the prey 
of another "reputable" banker. . . . 

The "Ethical" basis of the rule must be that the interests 
of the combined bankers are superior to the interests of the 
rest of the community. Their attitude reminds one of the 
"spheres of influence" with ample "hinterlands" by which 
rapacious nations are adjusting differences. 16 

BANKERS' FAILURE 

This failure of banker-management is not surprising. The 
surprise is that men should have supposed it would succeed. 
For banker-management contravenes the fundamental laws 
of human limitations: First, that no man can serve two mas- 
is Repeated under Despotism. 
16 See also Monopoly. 



34- the words of 

ters; second, that a man cannot at the same time do many 
things well. 

BANKERS' FUNCTION 

It is not the proper function of the banker to construct, 
purchase, or operate railroads, or to engage in industrial 
enterprises. The proper function of the banker is to give to 
or to withhold credit from other concerns; to purchase or 
to refuse to purchase securities from other concerns; and to 
sell securities to other customers. The proper exercise of this 
function demands that the banker should be wholly de- 
tached from the concern whose credit or securities are under 
consideration. His decision to grant or to withhold credit^ 
to purchase or not to purchase securities, involves passing 
judgment on the efficiency of the management or the sound- 
ness of the enterprise; and he ought not to occupy a position 
where in so doing he is passing judgment on himself. Of 
course detachment does not imply lack of knowledge. The 
banker should act only with full knowledge, just as a lawyer 
should act only with full knowledge. The banker who under- 
takes to make loans to or purchase securities from a railroad 
for sale to his other customers ought to have as full knowl- 
edge of its affairs as does its legal adviser. But the banker 
should not be, in any sense, his own client. He should not, 
in the capacity of banker, pass judgment upon the wisdom 
of his own plans or acts as railroad man. 

Such a detached attitude on the part of the banker is 
demanded also in the interest of his other customers the 
purchasers of corporate securities. The investment banker 
stands toward a large part of his customers in a position of 
trust, which should be fully recognized. The small investors, 
particularly the women, who are holding an ever-increasing 
proportion of our corporate securities, commonly buy on 
the recommendation of their bankers. The small investors 
do not, and in most cases cannot, ascertain for themselves 



Justice T$ r a n d e i s -35 

the facts on which to base a proper judgment as to the 
soundness of securities offered. And even if these investors 
were furnished with the facts, they lack the business experi- 
ence essential to forming a proper judgment. Such investors 
need and are entitled to have the bankers' advice, and obvi- 
ously their unbiased advice; and the advice cannot be un- 
biased where the banker, as part of the corporation's man- 
agement, has participated in the creation of the securities 
which are the subject of sale to the investor. 

BANKERS' POWER 17 

The bankers' power grows by what it feeds on. Power 
begets wealth; and added wealth opens ever new opportuni- 
ties for the acquisition of wealth and power. The operations 
of these bankers are so vast and numerous that even a very 
reasonable compensation for the service performed by the 
bankers would, in the aggregate, produce for them incomes 
so large as to result in huge accumulations of capital. But 
the compensation taken by the bankers as commissions or 
profits is often far from reasonable. Occupying, as they so 
frequently do, the inconsistent position of being at the same 
time seller and buyer, the standard for so-called compensa- 
tion actually applied is not the "Rule of reason/' but "All 
the traffic will bear." And this is true even where there is no 
sinister motive. The weakness of human nature prevents 
men from being good judges of their own deservings. 18 

BETRAYAL OF OUR GREAT HERITAGE 

[40] We cannot afford to be represented by men who are 
dishonest and reckless to the great heritage of an honorable, 
glorious past, handed down to us by our fathers. 

17 See also Interlocking Directorates. 

18 Repeated under Human Nature. 



36- the words of 

BETTER THAN PEACE 

There is something better than peace, and that is the 
peace that is won by struggle. 



19 



BIBLE 

The Bible first attracted me because of its plainness of 
speech, its insistence on the righteousness of the individual 
and justice of the group, the unrestraint with which it ar- 
raigns the Jewish people and its patriarchs and chosen lead- 
ers. I wonder whether any government today would risk 
publishing a document depicting the nation's most favored 
ruler as the Bible does David. I doubt whether there is any- 
thing in the authorized and approved annals of the nations 
comparable to the rapid review of the lives of the kings 
found in the Book of Kings, particularly to that terrifying 
brief verse, "And he did that which was evil in the sight of 
the LORD: he departed not all his days from the sins of 
Jeroboam the son of Nebat, wherewith he made Israel to 
sin." 

The Bible is great as wisdom and law, and greatest as 
prophecy. Greatest because rarest. Man somehow gropes 
his way to wisdom and law. But he no sooner acquires them, 
than he abuses them. He does not live by them of his own 
free will. He must be driven to do so. He must be accused 
and lashed when he ignores them. But this can be done 
only by those who are themselves above reproach and pre- 
pared to face martyrdom. Such men are rare. And such men 
were the Prophets. They denounced the follies and crimes 
of their own kings and people as they did of the mightiest 
empires of their day. They ridiculed the boastfulness of dic- 
tators as daringly as they did the inertness of idols. Add to 
this their abiding faith in man's goodness, their optimism 
and visions of a world living in peace, security, and brother- 

19 Repeated under Vital and Beyond Price. 



"Justice "Brandeis -37 

hood, the unmatched power and beauty of their language, 
and they stand alone among the benefactors of the human 
race. It is no exaggeration to say that they are still the first 
to reprove us when we go astray. I think that many people 
employ the expression "an Old Testament prophet" as a 
synonym for conscience. 2<> 

BIG BUSINESS 21 

"Big business" will then mean business big not in bulk or 
power, but great in service and grand in manner. 

BIGNESS 22 

There used to be a certain glamour about big things. Any- 
thing big, simply because it was big, seemed to be good and 
great. We are now coming to see that big things may be 
very bad and mean. 

* 

[45] Size, we are told, is not a crime. But size may, at least, 
become noxious by reason of the means through which it 
was attained or the uses to which it is put. 

# 

The evils of bigness are something different from and 
additional to the evils of monopoly. A business may be too 
big to be efficient without being a monopoly; and it may be 
a monopoly and yet (so far as size is concerned) may be well 
within the limits of efficiency. 

* 

When . . . you increase your business to a very great 
extent, and the multitude of problems increase with its 

20 The hour struck 9 A.M. The conversation ended abruptly. When 
I next came to the Brandeis home, October 7, 1941, in the company 
of Judge Louis E. Levinthal, it was to attend his funeral service. 

21 See also Industrial Liberty, Monopoly. 

22 See also Monopoly. 



38- the words of 

growth, you will find, in the first place, that the man at the 
head has a diminishing knowledge of the facts and, in the 
second place, a diminishing opportunity of exercising a care- 
ful judgment upon them. Furthermore and this is one of 
the most important grounds of inefficiency of large institu- 
tionsthere develops a centrifugal force greater than the 
centripetal force. Demoralization sets in; a condition of less- 
ened efficiency presents itself. . . . These are disadvan- 
tages that attend bigness. 

* 

In all human institutions there must be a limit of greatest 
efficiency. . . . Everybody in his experience knows his own 
limitations; knows how much less well he can do many 
things than a few things. There undoubtedly is a limit with 
a railroad, as in the case of other institutions, where they 
may be too small; but there is another limit where they may 
be too large where the centrifugal force will be greater than 
the centripetal, and where, by reason of the multiplicity of 
problems and the distance to the circumference, looseness 
of administration arises that overcomes any advantage from 
size, overcomes it so far as to make it relatively a losing 
proposition. 2 * 

* 

The successful, the powerful trusts, have created condi- 
tions absolutely inconsistent with these America's indus- 
trial and social needs. It may be true that as a legal proposi- 
tion mere size is not a crime, but mere size may become an 
industrial and social menace, because it frequently creates 
as against possible competitors and as against the employees 
conditions of such gross inequality, as to imperil the welfare 
of the employees and of the industry. 

23 See also Organization. 



Justice *Brandeis -39 

BLIGHTING INFLUENCE OF 
JOURNALISTIC GOSSIP 24 

[50] The press is overstepping in every direction the obvi- 
ous bounds of propriety and of decency. Gossip is no longer 
the resource of the idle and of the vicious, but has become a 
trade, which is pursued with industry as well as effrontery. 
To satisfy a prurient taste the details of sexual relations are 
spread broadcast in the columns of the daily papers. To 
occupy the indolent, column upon column is filled with idle 
gossip, which can only be procured by intrusion upon the 
domestic circle. The intensity and complexity of life, attend- 
ant upon advancing civilization, have rendered necessary 
some retreat from the world, and man, under the refining 
influence of culture, has become more sensitive to publicity, 
so that solitude and privacy have become more essential to 
the individual; but modern enterprise and invention have, 
through invasions upon his privacy, subjected him to mental 
pain and distress, far greater than could be inflicted by mere 
bodily injury. Nor is the harm wrought by such invasions 
confined to the suffering of those who may be made the sub- 
jects of journalistic or other enterprise. Each crop of un- 
seemly gossip, thus harvested, becomes the seed of more, 
and in direct proportion to its circulation, results in a lower- 
ing of social standards and of morality. Even gossip appar- 
ently harmless, when widely and persistently circulated, is 
potent for evil. It both belittles and perverts. It belittles by 
inverting the relative importance of things, thus dwarfing 
the thoughts and aspirations of a people. When personal 
gossip attains the dignity of print, and crowds the space 
available for matters of real interest to the community, what 
wonder that the ignorant and thoughtless mistake its rela- 
tive importance. Easy of comprehension, appealing to that 
weak side of human nature which is never wholly cast down 

24 See also Propriety, Right to Privacy. 



40* the words of 

by the misfortunes and frailties of our neighbors, 25 no one 
can be surprised that it usurps the place of interest in brains 
capable of other things. Triviality destroys at once robust- 
ness of thought and delicacy of feeling. No enthusiasm can 
flourish, no generous impulse can survive under its blighting 
influence. 26 

BOLDNESS 

Sometimes, if we would guide by the light of reason, we 
must let our minds be bold. 27 

BRAIN 

The brain is like the hand. It grows with using? 8 

BROTHERHOOD 29 

There is one feature in our ideals and practices which is 
peculiarly American it is inclusive brotherhood. 

Other countries, while developing the individual man, 
have assumed that their common good would be attained 
only if the privileges of their citizenship should be limited 
practically to natives or to persons of a particular nationality. 
America, on the other hand, has always declared herself for 
equality of nationalities as well as for equality of individ- 
uals. It recognizes racial equality as an essential of full hu- 
man liberty and true brotherhood, and that racial equality 
is the complement of democracy. America has, therefore, 
given like welcome to all the peoples of Europe. 



The spirit which subordinates the interests of the individ- 
ual to that of the class is the spirit of brotherhood a near 

25 Repeated under Human Nature. 

26 Repeated under Triviality, 

27 Repeated under Experimentation. 

28 Repeated under Industrial Democracy and Thinking. 

29 See also American Ideals. 



Justice Brandets -44 

approach to altruism; it reaches pure altruism when it in- 
volves a sacrifice of present interests for the welfare of others 
in the distant future. 



BUSINESS A PROFESSION 



30 



[55] Business should be, and to some extent already is, one 
of the professions. 



Why should not we recognize in the great realm of busi- 
ness those principles which have been the common property 
of the most advanced thought? Every man in the medical 
world glories in having given to the world something which 
advances medical science. Every man in the field of archi- 
tecture glories when he can give to the world something that 
advances architectural science. You will find exactly the 
same thing in almost every department of engineering. Why 
should it not be so in business? Is there any lack of oppor- 
tunity for competition, honorable competition, in the field 
of engineering or of architecture or of medicine? They can 
play the game wherever a man can see it. There need be no 
secrets when it comes to the question of advancing the art 
to which man devotes himself. And the same is absolutely 
true of business and will be recognized as true of business as 
soon as men come to recognize that business is one of the 
noblest and most promising of all the professions. 

BUSINESS SUCCESS 

In the field of modern business, so rich in opportunity for 
the exercise of man's finest and most varied mental faculties 
and moral qualities, mere money-making cannot be regarded 
as the legitimate end. Neither can mere growth in bulk or 
power be admitted as a worthy ambition. Nor can a man 
nobly mindful of his serious responsibilities to society, view 

30 See also Money-making and Service. 



42 the words of 

business as a game; since with the conduct of business hu- 
man happiness or misery is inextricably interwoven. 

Real success in business is to be found in achievements 
comparable rather with those of the artist or the scientist, 
of the inventor or the statesman. And the joys sought in the 
profession of business must be like their joys and not the 
mere vulgar satisfaction which is experienced in the acquisi- 
tion of money, in the exercise of power or in the frivolous 
pleasure of mere winning. 

CALMNESS 

To the exercise of good judgment calmness is ? in times of 
deep feeling and on subjects which excite passion, as essen- 
tial as fearlessness and honesty. 31 

CAPACITY OF INDIVIDUAL MAN 

Man's works have in many instances outrun the capacity 
of the individual man. For no matter how good the organ- 
ization, the capacity of an individual man must ordinarily 
determine the success of a particular enterprise, not only 
financially to the owners, but in service to the community. 
Organization can do much to make possible larger efficient 
units; but organization can never be a substitute for initia- 
tive and for judgment. 32 These must be supplied by the chief 
executive officers, and nature sets a limit to their possible 
accomplishment. 

CENTRALIZATION 

[60] History teaches, I believe, that the present tendency 
toward centralization must be arrested, if we are to attain 
the American ideals, and that for it must be substituted 
intense development of life through activities in the several 
States and localities. The problem is a very difficult one, but 

31 Repeated under Freedom of Speech. 

32 Repeated under Organization. 



Justice ftrandeis '43 

the local University is the most hopeful instrument for any 
attempt at solution. 

CHALLENGE OF EXISTING LAW 

The challenge of existing law is not a manifestation pecul- 
iar to our country or to our time. Sporadic dissatisfaction 
has doubtless existed in every country at all times. Such 
dissatisfaction has usually been treated by those who govern 
as evidencing the unreasonableness of law breakers. The 
line "No thief e'er felt the halter draw with good opinion 
of the law/' expresses the traditional attitude of those who 
are apt to regard existing law as "the true embodiment of 
everything that's excellent." It required the joint forces of 
Sir Samuel Romilly and Jeremy Bentham to make clear to 
a humane, enlightened and liberty-loving England that 
death was not the natural and proper punishment for theft. 
Still another century had to elapse before social science 
raised the doubt whether theft was not perhaps as much the 
fault of the community as of the individual. 

In periods of rapid transformation, challenge of existing 
law, instead of being sporadic, becomes general. Such was 
the case in Athens . . . Germany . . . the recent dissatis- 
faction with our law as administered [has] been due, in large 
measure, to the fact that it had not kept pace with the rapid 
development of our political, economic and social ideals. In 
other words, . . . the challenge of legal justice [is] due to 
its failure to conform to contemporary conceptions of social 
justice. 

CHANGE IN A DEMOCRACY 

In a democratic community men who are to be affected 
by a proposed change of conditions should be consulted and 
the innovators must carry the burden of convincing others 
at each state of the process of change that what is being 
done is right. 



44* the words of 

CHARACTER 

It is only in the Latin sense that talents are to be "ad- 
mired"; they are to be wondered at. But character only is 
to be "admired" as we use that word. It is the effort the 
attemptthat tells. Man's work is, at best, so insignificant 
compared with that of the Creator it is all so Lilliputian, 
one cannot bow before it. 33 

CHARACTER AND INTELLIGENCE 

Democratic ideals can be attained only where those who 
govern exercise their power not by alleged divine right or 
inheritance, but by force of character and intelligence. 34 

CHILD 

[65] Since the child is the father of the man, we must bear 
constantly in mind that the American standard of living can- 
not be attained or preserved unless the child is not only well 
fed but well born; unless he lives under conditions whole- 
some morally as well as physically; unless he is given educa- 
tion adequate both in quantity and in character to fit him 
for life's work. 

CHOSEN PEOPLE 35 ' a 

That the Jews have regarded themselves as the chosen 
people is understandable. They were for a period of many 
centuries the only monotheists in the world. b They alone 

33 Repeated under Man's Work. 

34 Repeated under Democratic Ideals. 

35 See also Jews Today. 

a I give here a summation of what the Justice said on tlie question 
of a "chosen people" on the several occasions I brought up the 
subject. 

b When I mentioned the opinion of certain scholars to the effect 
that some primitive tribes were monotheists, the Justice countered 
that that was an abuse of language. For the monotheism of those 
tribes, he said, if it existed was unreasoned, as, for example, when a 
child speaks accidentally of war, or justice, or love. Furthermore, 
he argued, that brand of monotheism had obviously had little 



Justice Ttrandeis * 4 5 

had the idea of one invisible God who could not be repre- 
sented in images. 6 They alone spoke with ever more insist- 
ence of a perpetual covenant with God. This, by the way, 
seems to me to be the basic teaching of the Bible. God is 
one and Israel is one and the two are bound together for 



ever. d 



True, all or most ancient peoples believed themselves to 
be the favorites of certain gods. But I wonder whether the 
relation was as firm and persistent. Anyway, the gods of the 
Near East and the Graeco-Roman world collapsed and the 
peoples disintegrated. Since the Jews and their God alone 
escaped from the wreckage, it was natural that they should 
grow closer to each other. 

When the Western world was converted to Christianity 
the belief in the election of Israel gathered new momentum. 
For then everybody believed that Israel was a chosen peo- 
ple. If there was any difference of opinion it was only as to 
the identity of Israel. We can hardly blame the Jews for 
having resolved the matter in their favor. They knew them- 
selves to be Israel and knew that everybody recognized 
Israel as having been chosen by God. 

Christian excesses against the Jews strengthened this con- 
viction even more than did the collapse of the pagan gods 
and pagan states. For the hounded and persecuted, finding 
themselves more and more isolated, grew closer and closer 
to their God and drew their God closer to themselves. Cer- 

eEect on those who professed it. When I suggested that some of the 

Greek philosophers appeared to have been monotheists, he said that 

that was most likely true, but that all the same the Greek people 

remained polytheists. 

c I mentioned the fact that the earliest Roman cult was imageless. 

The Justice's comment was that the Jews had probably never heard 

of it. 

d I remarked that the Zohar spoke of God and Israel as being called 

one when together, but not when parted. The Justice smiled with 

satisfaction as he did whenever I interjected that there was support 

in Jewish literature for what he was saying. 



46 * the words of 

tainly the more vigorously the Church argued that it was 
Israel and that it was God's elect, the faster the Jews held 
on to their ancient belief. 

So much I find reasonable and so much I understand. 
Whether this in the last analysis is traceable to tribal self- 
glorification, or whether it has done the Jews and the world 
good or harm, is a question that requires the careful investi- 
gation of twenty-five centuries of history. 

What, however, need not wait for the results of research 
is the revision or reinterpretation, as you call it, of this be- 
lief. 6 That is, assuming that we wish to continue speaking 
of ourselves as a chosen people/ When I ask for revision I 
am not doing it because in recent years well-meaning liberals 
discovered in the "dogma" of the election of Israel the roots 
of Nazi race theories. That should give us no concern, except 
insofar as we ought to open the eyes of the blind. 

One of your colleagues g who was here several days ago 
tried to reeducate me into anti-Zionism (He had mistakenly 
assumed that because for many years my associations with 
Jews were limited that I had been an anti-Zionist. As a 
rabbi he should have known that most people are neither 
for nor against. They're neutrals. And neutrality is at times 
a graver sin than belligerence) , 36 ' h He began by saying, that 
Zionism made for anti-Semitism, and concluded that the 

6 1 had often mentioned that Jewish scholars were engaged in re- 
interpreting the past and that one of them, Professor Mordecai M. 
Kaplan, had founded a movement on the basis of its reconstruction. 
f I drew the Justice into this discussion by telling him that the con- 
cept of the chosen people had become a subject of controversy. 
s The Justice did not mention the name of the rabbi and I did not 
ask for it. 

36 Repeated under Neutrality. 

h When I left the Brandeis home I thought that the Justice had 
raised his voice when he spoke of neutrality. I believed that he nad 
in mind the neutrality of the United States, England, France, and 
other world powers in the face of Nazi atrocities. He had spoken 
feelingly of their inaction several days before. 



Justice 'Brandeis -47 

Jews had always been mindful of what the Gentiles were 
saying. 

I made no comment on his anti-Semitism argument. I 
said only that the Jews were mindful to maintain high stand- 
ards of education, ethics, morality, etc., lest they defame the 
name of the God they claimed had chosen them, 1 

We cannot and should not be oblivious of world opinion 
but we certainly ought to be as attentive to what we have to 
say to the world as to what the world has to say to or of us. 
We must not permit the prejudiced and ignorant to shape 
our lives. The prejudiced will always call the best worst and 
the ignorant will confuse the two. 

When I speak of revision it is because the idea of the 
chosen people cannot mean today what it was understood 
to mean in antiquity or the Middle Ages. There were too 
many barriers between peoples for them to get acquainted 
and see each other as they were. I doubt whether the ancient 
Babylonians had learned much from the Egyptians, or the 
Egyptians from them. That is, I doubt whether there was 
wide-spread knowledge of the arts of one among the other, 
or whether they read each other's literature or analyzed each 
other's beliefs and way of life. 

I hesitate to express an opinion as to what our own peo- 
ple actually knew about the pagan peoples whom they con- 
demned. My Bar Mitzvah, 5 I am told you once "informed 
against" me, was delayed to my 54th k year. But my impres- 

*I quoted Ezekiel, XXXVI, 20: "And when they came unto the 
nations, whither they came, they profaned My Holy name; in that 
men said of them : 'These are the people of the LORD, and are gone 
forth out of His land/ " The Justice reflected for a moment but 
made no comment. 

* Hebrew for the "son of command" or "man of duty." Upon his 
thirteenth birthday a Jewish boy, according to Jewish tradition, 
reaches the age of duty and responsibility, 

k At a mass celebration in honor of the Justice's seventy-fifth birth- 
day I alluded to the fact that Mr. Brandeis had first discovered his 
people in 1910, when he was 54 years old, adding that that year 



48 the words of 

sion is that the Jews did not know much and perhaps took 
lightly what they did know. Egypt was an enemy, and so 
were Babylonia, Assyria, and the smaller neighboring states, 
and all of them were idolaters. 1 Hellenism was shut out of 
view by Antiochus Epiphanes and Roman civilization by 
its procurators and by its two or three mad kings. And again 
the Greeks and Romans were idolaters. I wonder whether an 
intimate knowledge of the life and work of Socrates, Peri- 
cles, Plato, and Aristotle might not have led the Rabbis to 
modify their views of the pagan world, and with it their con- 
ception of a chosen people. According to Graetz there are 
some kind words in Jewish sources for Alexander the Great 
and some warm feelings for Julius Caesar. I do not recall to 

should be remembered as the year of his Bar Mitzvah. I had the 
privilege, on that occasion, of sharing the platform with Dr. Stephen 
S. Wise and Justice Andrew A. Bruce, both of whom were close to 
the Justice. I have had the feeling that one of them "informed 
against" me. When we took tea after the meeting, Justice Bruce 
evinced great interest in the institution of Bar Mitzvah. 
1 1 pointed out that the Rabbis knew more about the Greeks and 
Romans than was the general impression, that they used many Greek 
and Latin loan-words, held the Greek language and culture in high 
regard, were dazzled by the might and tumultuousness of the Roman 
Empire, compared Rome to the sun, made it the goal of Moses and 
David, and one of the Rabbis even praised the Romans for the roads, 
aqueducts, and baths they had built everywhere. And some of them 
may even have had some knowledge of Latin literature. I further 
added that the Rabbis, however, saw through the duplicity of 
Roman diplomacy and spoke bitterly of Roman barbaric acts and 
the social inequality and injustice that prevailed in Rome itself. 
R. Joshua b. Levi, I recalled, who had visited Rome, could not 
forget the painful contrast between Roman treatment of marble 
statues and the poor. The former, he noted, were covered with 
expensive rugs to protect them against the winter's cold and the 
.summer's heat. The latter were left uncared for to starve and 
freeze. But, I concluded, it was probably undeniable that the 
Rabbis' views of the Greeks were colored by the atrocities of Anti- 
ochus, and their views of Rome by the conviction that Rome was 
the new Edom r the arch-enemy of Israel. The Justice remarked that 
we probably get as distorted a view of Rome in rabbinic writings 
as we do of the Pharisees in the New Testament. 



Justice 'Brandeis * 49 

what the historian attributes the fact. But I surmise that it 
was most probably due to the benevolence of which Alexan- 
der and Caesar were capable and their tolerance of beliefs 
and practices not their own. m In other words, a friendly 
idolater could be distinguished from a hostile one. Might it 
not be then that the culture of a friendly people, despite its 
idolatrous character, might have been looked at more sympa- 
thetically than when the same culture was that of an enemy 
people. 

What might not Philo's report of his mission to Rome 
have been if he had had an audience with a Marcus Aurelius 
instead of with Caligula. n Suppose the Jewish philosopher 
had heard the Roman Emperor declare himself against lim- 
iting Roman citizenship to Romans or had heard him say 
that he, as the particular Marcus Aurelius, was a Roman 
citizen, but that as a man he was a citizen of the world- 
state. One of the Greeks, whose name I do not recall, said 

m Generally speaking the Justice was right. It should be added, how- 
ever, that the Rabbis looked critically at Alexander, as did Diogenes, 
and that the Jews of Palestine did not forgive Caesar for having 
made Antipater procurator of their country. 
n The Justice had in mind the delegation which the Jews of Alex- 
andria sent to Caligula in the year 40 C.E., of which delegation Philo 
was a member. 

1 mentioned the various reports in rabbinic literature of conversa- 
tions or disputations between the Rabbis and distinguished pagans, 
such as those of R. Joshua b. Hananiah and Hadrian, R. Akiba and 
Tinius Rufus. I dwelt particularly on the report of the friendly per- 
sonal relations between a Roman emperor Antoninus, who has been 
variously identified as Marcus Aurelius, Septimius Severus, Cara- 
calla, and Lucius Verus, with a Rabbi who in turn has been identified 
with Rabbi Judah the Prince I and R. Judah the Prince II. The 
Justice, to my surprise, asked me whether the reports were legendary. 
I answered that that was the general opinion of scholars. He then 
wished to know whether in those tales the Rabbis got the better of 
the pagans. To which I replied that that was the case, so much so 
that Antoninus, for example, first erects an altar to God, shows the 
Jews great kindliness, and in the end becomes a true proselyte. The 
Justice remained silent for a time, and then added, "It is clear that 



5O the words of 

of Athens that she had "distanced the rest of mankind in 
thought and in speech, that her pupils [had] become the 
teachers of the rest of the world; and she has brought it 
about that the name 'Hellenes' suggests no longer a race but 
an intelligence, and that the title 'Hellenes' is applied rather 
to those who share our culture than those who share a 
common blood." p 

I ask what effect would these sentiments have made on 
the Jewish sages? Would they have disregarded them and 
still boasted of the superior intelligence of the Jewish chil- 
dren of Palestine to the wise men of Athens? Q 

Well, we need not speculate as to what they might have 
done. But we know what we cannot, must not, and I am 
certain do not wish to do. We cannot today pin the hopes 
of humanity on any one particular people. We cannot today 
single out any one particular people as being virtuous, wise, 
and destined for greater things than all the rest. It would 
seem to me that even the strictest adherents of the Jewish 
faith ought to inquire whether their belief respecting the 
election of Israel is not perhaps based on a misinterpretation 
of revelation, or that there was a time limit to the belief. 
Maybe it was to be maintained until the world had rid itself 
of polytheism. 

I should think it presumptuous for any people in this cen- 
tury to assert that it alone had a mission for all peoples, but 
that none of the other peoples had any mission for it. Every 

if the Greeks and Romans had been favorably disposed toward the 
Jews and there had been understanding and sympathy on both sides, 
the Rabbis would have recognized the immense contributions those 
two peoples made to the advancement of civilization, and might not 
perhaps have rejected the possibility of their having been 'chosen' 
in some way." 

P This quotation, from Isocrates* Panegyricus, was abbreviated by the 
Justice. I give it here in full in President Norlin's translation. 
I had mentioned earlier that there were many tales about the eld- 
ers or wise men of Athens in rabbinic writings and that in not a few 
of those tales the Athenians are outwitted by Jewish children. 



Justice Krandeis 5 f 

people, it is becoming more and more evident, has its own 
character. And insofar as it has a character of its own it has 
a mission. For it has that elusive something, its essence^ 
which the other peoples do not have and of which they 
may stand in need. But all other peoples also have those 
elusive somethings, of some of which the Jewish people cer- 
tainly stand in need. In the realm of things material one 
people may be a solitary benefactor and not a beneficiary. 
In the realm of the spirit there is no such solitary philanthro- 
pist. Here all peoples give and take, some more and some 
less, each giving what it has, and if it is wise it takes what 
it needs. 

The experience of the Jewish people is unique. It is Jew- 
ish. Consequently the Jews have much to contribute toward 
the solution of the problems that perplex and confound all 
men. As a comparatively small people the Jewish people 
may be in a position to do better than bigger peoples. Pales- 
tine, when the Jews constitute the majority there, may, be- 
cause of its very smallness, serve as a laboratory for some 
far-reaching experiments in democracy and social justice. 
But let us not forget that there are other small peoples who 
have in recent decades performed miracles in soil reclama- 
tion, in the rebuilding of their lands and peoples, and in 
advancing popular education and democratic ideals. Nor can 
we as Americans forget what our country has already done 
for the world and what it may yet do. The Pilgrim Fathers, 
in their day, and many of our most representative men since 
then, all conceived of America as God's gift to humanity. 
President Wilson spoke with deep conviction of America's 
mission. Perhaps Mr. Wilson had learned to speak this way 
because he was a constant reader of the Bible. Well then, 
let us teach all peoples that they are all chosen, and that 
each has a mission for all. I should prefer such an effort to 
that of boasting of our election. 



52- tbe words of 

CHURCH AND DEMOCRACY 

Democracy in any sphere is a serious undertaking. It sub- 
stitutes self -restraint for external restraint. It is more difficult 
to maintain than to achieve. It demands continuous sacrifice 
by the individual and more exigent obedience to the moral 
law than any other form of government. Success in any 
democratic undertaking must proceed from the individual. 
It is possible only where the process of perfecting the indi- 
vidual is pursued. His development is attained mainly in the 
processes of common living. Hence the industrial struggle 
is essentially an affair of the Church and is its imperative 
task. 

BENJAMIN V. COHEN 

On questions of international law consult Ben Cohen. If 
he cannot give you the answers they are probably not avail- 
able. 

COLLECTIVE BARGAINING 

Since the adoption of the federal constitution, and nota- 
bly within the last fifty years, we have passed through an 
economic and social revolution which affected the life of the 
people more fundamentally than any political revolution 
known to history. Widespread substitution of machinery 
for hand labor (thus multiplying a hundredfold man's pro- 
ductivity), and the annihilation of space through steam and 
electricity, have wrought changes in the conditions of life 
which are in many respects greater than those which had 
occurred in civilized countries during thousands of years 
preceding. The end was put to legalized human slavery an 
institution which had existed since the dawn of history. But 
of vastly greater influence upon the lives of the great major- 
ity of all civilized peoples was the possibility which inven- 
tion and discovery created of emancipating women and of 
liberating men called free from the excessive toil thereto- 



Justice Brandeis * 5 3 

fore required to secure food, clothing and shelter. Yet, while 
invention and discovery created the possibility of releasing 
men and women from the thralldom of drudgery, there actu- 
ally came, with the introduction of the factory system and 
the development of the business corporation, new dangers 
to liberty. Large publicly owned corporations replaced small 
privately owned concerns. Ownership of the instruments of 
production passed from the workman to the employer. In- 
dividual personal relations between the proprietor and his 
help ceased. The individual contract of service lost its char- 
acter, because of the inequality in position between em- 
ployer and employee. The group relation of employee ta 
employer with collective bargaining became common, for it 
was essential to the workers' protection. 



[70] It is almost inconceivable to my mind that a corpo- 
ration with powers so concentrated as the Steel Corporation 
could get to a point where it would be willing to treat with 
the employees on equal terms. And unless they treat on 
equal terms then there is no such thing as democratization. 
The treatment on equal terms with them involves not 
merely the making of a contract; it must develop into a con- 
tinuing relation. The making of a contract with a union is 
a long step. It is collective bargaininga great advance. But 
it is only the first step. In order that collective bargaining 
should result in industrial democracy it must go further and 
create practically an industrial governmenta relation be- 
tween employer and employee where the problems as they 
arise from day to day, or from month to month, or from 
year to year, may come up for consideration and solution 
as they come up in our political government. 

In that way conditions are created best adapted to secur- 
ing proper consideration of any question arising. The repre- 
sentative of each party is heard and strives to advance the 



54* the words of 

interest he represents. It is the conflict of these opposing 
forces which produces the contract ultimately. But ade- 
quately to solve the trade problems there must be some 
machinery which will deal with these problems as they arise 
from day to day. You must create something akin to a gov- 
ernment of the trade before you reach a real approach to 
democratization. You must create a relation of employer 
and employee similar to that which exists in the trade under 
the protocol with the preferential union shop. 37 

* 

The question here is not so much the question whether 
the number of cents per hour that this miserable creature 
receives is a little more or a little less. Whether it is enough, 
none of us are competent to determine. What we are com- 
petent to determine, sitting right here, as American citizens, 
is whether any men in the United States, be they directors 
of the Steel Corporation or anyone else, are entitled and 
can safely determine the conditions under which a large 
portion of the American [workmen] shall live; whether it is 
not absolutely essential to fairness, for results in an Ameri- 
can democracy, to say that the great mass of working people 
should have an opportunity to combine, and by their collec- 
tive bargaining secure for themselves what may be a fair 
return for their labor. There is the fundamental question, 
and there is the question which is at the bottom of this situ- 
ation. The denial of that right of collective bargaining is an 
explanation of the miserable condition of the workingrnen 
in the steel industry. 

COMMON PEOPLE 

This investigation [Ballinger Case] has been referred to as 
a struggle for conservation, a struggle against the special in- 
terests. It is that: but it is far more. In its essence, it is the 

37 See also Employer and Employee. 



Justice TZrandeis 55 

struggle for democracy, the struggle of the small man against 
the overpowering influence of the big; politically as well as 
financially, the struggle to establish the right of every Amer- 
ican to equal justice in the public service as well as in the 
courts, that no official is so highly stationed that he may 
trample ruthlessly and unjustly upon even the humblest 
American citizen. The cause of Glavis is the cause of the 
common people, and more especially the cause of the hun- 
dreds of thousands of government officials. 

COMPETITION 38 

Undoubtedly competition involves waste. What human 
activity does not? The wastes of democracy are among the 
greatest obvious wastes, but we have compensations in de- 
mocracy which far outweigh that waste and make it more 
efficient than absolutism. So it is with competition. The 
waste is relatively insignificant. 39 There are wastes of compe- 
tition which do not develop, but kill. These the law can and 
should eliminate, by regulating competition. 

* 

The history of combinations has shown that what one 
may do with impunity, may have intolerable results when 
done by several in cooperation. Similarly what approxi- 
mately equal individual traders may do in honorable rivalry 
may result in grave injustice and public injury, if done by a 
great corporation in a particular field of business which it is 
able to dominate. In other words, a method of competition 
fair among equals may be very unfair if applied where 
there is inequality of resources. 

* 

[75] Unrestricted competition, with its abuses and ex- 
cesses, leads to monopoly, because these abuses and excesses 

38 See also Regulated Competition, Sherman Law. 

39 Repeated under Democracy. 



56- the words of 

prevent competition from functioning properly as a regu- 
lator of business. Competition proper is beneficent, because 
it acts as an incentive to the securing of better quality or 
lower cost. It operates also as a repressive of greed, keeping 
within bounds the natural inclination to exact the largest 
profit obtainable. Unfair and oppressive competition defeats 
those purposes. It prevents the natural development which 
should attend rivalry and which gives success to those who 
contribute most to the community by their development of 
their own business and the exercise of moderation in the 
.exaction of profits. It substitutes devious and corrupt meth- 
ods for honest rivalry and seeks to win, not by superior 
methods, but by force. Its purpose is not to excel, but to 
destroy. 

# 

Some people believe that the existing conditions threaten 
-even the stability of the capitalistic system. Economists are 
searching for the causes of this disorder and are re-examin- 
ing the basis of our industrial structure. Most of them real- 
ize that failure to distribute widely the profits of industry 
has been a prime cause of our present plight. But rightly or 
wrongly, many persons think that one of the major contrib- 
uting causes has been unbridled competition. 



No system of regulation can safely be substituted for the 
operation of individual liberty as expressed in competition. 
It would be like attempting to substitute a regulated mon- 
.archy for a republic. 



It seems self-evident not only when you consider the dif- 
ferent forms of methods of transportation, like railroad as 
against water-carrier or railroad as against trolley, but it is 
equally self-evident when you are considering what ought 



Justice TSrandeis * 5 7 

to be the competition between the different members or 
concerns in the same class. The one that can do it the best 
and usually that means the one that can do it the cheap- 
estought to perform the service. 

COMPETITION FROM WITHIN 

Every business requires for its business health the me-* 
mento mori of competition from without. It requires like- 
wise a certain competition from within, which can exist 
only where the ownership and management, on the one 
hand, and the employees, on the other, shall each be alert, 
hopeful, self-respecting, and free to work out for themselves 
the best conceivable conditions. 

CONCENTRATION 

[80] I doubt whether anybody who is himself engaged in 
any important business has time to be a director in more 
than one large corporation. If he seeks to know about the 
affairs of that one corporation as much as he should know, 
not only in the interest of the stockholders, but in the inter- 
est of the community, he will have a field for study that will 
certainly occupy all the time that he has. 40 

CONCRETE PROBLEMS 

As a whole I have not got as much from books as I have 
from tackling concrete problems. I have generally run up 
against a problem, have painfully tried to think it out, with 
a measure of success, and have then read a book and found 
to my surprise that some other chap was before me. 

CONSERVATION 

Conservation, in its very essence, is preserving things pub- 
lic for the people, preserving them so that the people may 
have them. To accomplish this is the aim of our Republic. 
It is the aim of our great democracy that men shall, so far 

40 Repeated under Monopoly. 



58- the words of 

as humanly possible, have equal opportunities, and that the 
differences in opportunities to which men have been subject 
elsewhere shall not prevail here. 41 

CONSERVATISM 

True conservatism involves progress. . . . Unless our 
financial leaders are capable of progress, the institutions 
which they are trying to conserve will lose their foundation. 

CONSTITUTION 

The federal constitution . . . perhaps the greatest of 
human experiments. 42 

CONTROL AND COOPERATION 

[85] The citizen in a successful democracy must not only 
have education, he must be free. Men are not free if de- 
pendent industrially upon the arbitrary will of another. In- 
dustrial liberty on the part of the worker cannot, therefore, 
exist if there be overweening industrial power. Some curb 
must be placed upon capitalistic combination. Nor will even 
this curb be effective unless the workers cooperate, as in 
trade unions. Control and cooperation are both essential to 
industrial liberty. 

COOPERATIVE MOVEMENT 

Farmers, workingmen, and clerks are learning to use their 
little capital and their savings to help one another instead of 
turning over their money to the great bankers for safekeep- 
ing, and to be themselves exploited. And may we not expect 
that when the cooperative movement develops in America, 
merchants and manufacturers will learn from farmers and 
workingmen how to help themselves by helping one an- 
other, and thus join in attaining the New Freedom for all? 
When merchants and manufacturers learn this lesson, 

41 See also American Ideals. 

42 Repeated under Experimentation. 



Justice "Brandeis 59 

money kings will lose subjects, and swollen fortunes may 
shrink; but industries will flourish, because the faculties of 
men will be liberated and developed. 

CORPORATION LAWYER 

Instead of holding a position of independence, between 
the wealthy and the people, prepared to curb the excesses of 
either, able lawyers have, to a large extent, allowed them- 
selves to become adjuncts of great corporations and have 
neglected the obligation to use their powers for the protec- 
tion of the people. We hear much of the "corporation law- 
yer," and far too little of the "people's lawyer/' The great 
opportunity of the American Bar is and will be to stand 
again as it did in the past, ready to protect also the interests 
of the people. 43 

COURTS AND THE PEOPLE 

I believe that the courts and the people have been too far 
apart. There is no subject so complex that the people can- 
not be interested in it and made to see the truth about it if 
pains enough be taken; and I believe that a common agree- 
ment of public sentiment should influence the court's deci- 
sion on many a question. 

CUTTHROAT COMPETITION 

Monopoly is the natural outcome of cutthroat competi- 
tion. 

DANGERS TO DEMOCRACY 

[90] Many dangers to democracy ... are inherent in 
these huge aggregations. 44 

DECEPTION 

The breaches of trust committed or permitted by men of 
high financial reputation, the disclosure of the payment of 

43 See also Lawyers' Education, Legal Profession. 

44 Repeated under Monopoly. 



50* the words of 

exorbitant salaries and commissions, the illegal participation 
in syndicate profits, the persistent perversion of sacred trust 
funds to political purposes, the cooperation of the large 
New York companies to control the legislatures of the coun- 
trythese disclosures are indeed distressing; but the practice 
of deliberate and persistent deception of the public which 
the testimony discloses, though less dramatic, is even more 
serious. Talleyrand said, "Language was made to conceal 
thought/ 7 George W. Perkins would teach us that "Book- 
keeping was made to conceal facts." 

DELICATE OPERATION 

To exercise a sound judgment in the difficult affairs of 
business is ? at best, a delicate operation. And no man can 
successfully perform that function whose mind is diverted, 
however innocently, from the study of: "What is best in the 
long run for the company of which I am a director?" 

DE MAMD 

Many labor leaders have regarded demand as static, as 
something fixed. They have therefore assumed that if there 
is a hundred per cent to divide, it will last longer if we each 
do less, and it will go further. That I believe to be absolutely 
unsound, as shown by experience. There is no fixed demand. 
Demand is capable of almost any degree of expansion. It is 
partly this unfortunate lack of confidence in employers, as 
a whole, and partly a failure to recognize the results of eco- 
nomic experience, to which the tendency of many labor 
leaders to restrict production by the individual worker is 
due. 

LEWIS N. DEMBITZ 

To those of my generation, your father [Lewis N. Dem- 
bitz] was a living university. With him, life was unending 
intellectual ferment. He grappled eagerly with the most diffi- 
cult problems in mathematics and the sciences, in eco- 



Justice "Brandeis 6 1 

nomics, government and politics. In the diversity of his 
intellectual interests, in his longing to discover truths, in 
his pleasure in argumentation and the process of thinking, 
he reminded one of the Athenians. He loved books as a 
vehicle of knowledge and an inciter to thought; he made his 
love contagious. 

It is appropriate that his influence should be remembered 
in the library where he would have worked, and is in part 
the fruit of his influence. A collection of books is the 
memorial for which he would have cared most. And the col- 
lection which tells of Palestine's rebirth seems the most 
appropriate. For the deepest of his studies were those allied 
to the Jewish religion. He was orthodox. He observed the 
law. But, he was not satisfied with merely observing it. He 
sought to understand the law in order to find its reason; he 
studied deeply into the history of the Jewish people. His 
was not the drive of intellectual curiosity into the realm of 
dead knowledge. He recognized in the past the mirror of the 
future; a future which would be a noble and glorious one 
for his people. It was natural that he should have been 
among the first in America to support Herzl in his effort to 
build a new Palestine. 

DEMOCRACY 

[95] Democracy means not merely, I had almost said not 
so much, the rights of the whole people, as the duties of 
the whole people. 

* 

We need democracy at all times no matter what the 
system is under which we work. 

* 

The wastes of democracy are among the greatest obvious 
wastes, but we have compensations in democracy which far 
outweigh that waste, and make it more efficient than abso- 



62* the words of 

lutism. So it is with competition. Incentive and develop- 
ment which are incident to the freer system of business 
result in so much greater achievement that the waste is 
relatively insignificant. 45 The margin between that which 
men naturally do, and that which they can do, is so great 
that a system which urges men on to action and develops 
individual enterprise and initiative is preferable, in spite of 
the wastes that necessarily attend that process. 

DEMOCRACY AND ARISTOCRACY 

Democracy rests upon two pillars; one, the principle that 
all men are equally entitled to life, liberty and the pursuit 
of happiness; and the other, the conviction that such equal 
opportunity will most advance civilization. Aristocracy, on 
the other hand, denies both these postulates. It rests upon 
the principle of the superman. It willingly subordinates the 
many to the few, and seeks to justify sacrificing the indi- 
vidual by insisting that civilization will be advanced by such 
sacrifices. 46 

DEMOCRATIC IDEALS 

Democratic ideals cannot be attained by the mentally un- 
developed. In a government where every one is part sover- 
eign, every one should be competent, if not to govern at 
least to understand the problems of government; and to this 
end education is an essential. 47 



[100] Democratic ideals can be attained only where those 
who govern exercise their power not by alleged divine right 
or inheritance, but by force of character and intelligence. 48 

45 See Competition. 

46 See also Educational Standard, Education of Electorate. 

47 Repeated under Jews and Democracy. 

48 Repeated under Character and Intelligence, Jews and Democracy. 



Justice "Brandeis * 63 

* 

Our great beneficent experiment in democracy will fail 
unless the people, our rulers, are developed in character and 
intelligence. 49 

DEMOCRATIC METHODS 

Democratic methods are necessarily slow and often seem 
unreasonable. And the fact that our instruments are man 
with his weaknesses and defects, is at times exasperating. 

DEPRE CIATION 

There is no regularity in the development of deprecia- 
tion. It does not proceed in accordance with any mathe- 
matical law. There is nothing in business experience or in 
the training of experts, which enables man to say to what 
extent service life will be impaired by the operations of a 
single year, or of a series of years less than the service life. 

DESPOTISM 



There is no way in which to safeguard people from des- 
potism except to prevent despotism. 5 " 



, 50 



[105] Despotism, be it financial or political, is vulnerable, 
unless it is believed to rest upon a moral sanction. 51 

DIFFERENTIATION NOT UNIFORMITY 

In differentiation, not in uniformity, lies the path of 
progress. 52 

49 Repeated under Leisure. 

50 Repeated under Monopoly, 
si See Bankers' Ethics. 

52 See America. 



64' the words of 

WILLIAM O, DOUGLAS 

Justice Douglas will leave his mark on the Court. I am 
very much pleased with my successor. He would have been 
my own choice. 53 

DUTIES 

The greatest progress will perhaps be made if all of you 
can give larger thought to your duties than to your rights. 

DUTY 

Duty must be accepted as the dominant conception in 
life. 

DUTY TO THE COMMUNITY 

[110] All rights are derived from the purposes of the 
society in which they exist; above all rights rises duty to 
the community. 

EARLY NEW ENGLANDERS 

The early New Englanders appreciated fully that educa- 
tion is an essential of potential equality. The founding of 
their common school system was coincident with the found- 
ing of the colonies; and even the establishment of institu- 
tions for higher education did not lag far behind. Harvard 
College was founded but six years after the first settlement 
of Boston. 54 

EDUCATED JEW 

The educated descendants of a people which in its in- 
fancy cast aside the Golden Calf and put its faith in the 
invisible God cannot worthily in its maturity worship 
worldly distinction and things material. 

53 I am not sure about the last sentence. The Justice may have said 
"No other appointee or successor would have pleased me as much." 

54 Repeated under Jews and Democracy. 



Justice Tlrandeis 65 

EDUCATION 

Education must continue throughout life. 

EDUCATIONAL ENDOWMENTS 

I have, and I think many must have, a grave apprehension 
as to some of the great educational endowments of the 
so-called private universities in contrast with the State uni- 
versities. I think we are fortunate in having in this country 
both the one and the other; and that other foundations, if 
they are not too large, may be very beneficial; provided 
always that there are other forces in governmental agencies 
which can counteract them. Still I cannot help feeling a cer- 
tain apprehension as to later results of these foundations. 

EDUCATIONAL STANDARD 55 

[115] The intellectual development of citizens may not 
be allowed to end at fourteen. With most people whose 
minds have really developed, the age of fourteen is rather 
the beginning than the end of the educational period. The 
educational standard required of a democracy is obviously 
high. The citizen should be able to comprehend among 
other things the many great and difficult problems of in- 
dustry, commerce and finance, which with us necessarily 
become political questions. He must learn about men as 
well as things. 

EDUCATION OF ELECTORATE 55 

I am unwavering in my belief in democracy of the old 
representative type, when the representative was to exercise 
his judgment and discretion and not merely voice the will 
of the electorate. The trouble with our democracy is that 
we have not been willing to pay the price that is, educate 
the electorate. That must be a continuous process not a 
quadrennial or annual campaign. And it must involve a 
much wider participation in government. I think consider- 

55 See also Democracy and Aristocracy. 



66* the words of 

ation of governmental problems can be made for a large 
section of the people the most alluring of occupations. And 
there will be time for this when we have the five-day week 
and six-hour day. 



EFFICIENCY 56 



Efficiency and economy imply employment of the right 
instrument and material as well as their use in the right 
manner. To use a machine, after a much better and more 
economical one has become available, is as inefficient as 
to use two men to operate an efficient machine when the 
work could be performed equally well by one at half the 
labor cost. 



The world's demand for efficiency is so great and the 
supply so small, that the price of efficiency is high in every 
field of human activity. 



While a business may be too small to be efficient, effi- 
ciency does not grow indefinitely with increasing size. There 
is in every line of business a unit of greatest efficiency. What 
the size of that unit is cannot be determined in advance by 
a general rule. It will vary in different lines of business and 
with different concerns in the same line. It will vary with the 
same concern at different times because of different condi- 
tions. What the most efficient size is can be learned defi- 
nitely only by experience. The unit of greatest efficiency is 
reached when the disadvantages of size counterbalance the 
advantages. The unit of greatest efficiency is exceeded when 
the disadvantages of size outweigh the advantages. For a 
unit of business may be too large to be efficient as well as 

56 See also Interlocking Directorates, Monopoly and Efficiency, 
Scientific Management. 



Justice "Brandeis 6 7 

too small. And in no American industry is monopoly an 
essential condition of the greatest efficiency. 

* 

[120] Real efficiency in any business in which conditions 
are ever changing must ultimately depend, in large measure, 
upon the correctness of the judgment exercised, almost 
from day to day, on the important problems as they arise. 

EFFICIENCY AND SOCIAL IDEALS 

Efficiency is the hope of democracy. Efficiency means 
greater production with less effort and at less cost, through 
the elimination of unnecessary waste, human and material. 
How else can we hope to attain our social ideals? 

The "right to life" guaranteed by our Constitution is now 
being interpreted according to demands of social justice and 
of democracy as the right to live, and not merely to exist. 
In order to live men must have the opportunity of develop- 
ing their faculties; and they must live under conditions in 
which their faculties may develop naturally and healthily. 

In the first place, there must be abolition of child labor, 
shorter hours of labor, and regular days of rest, so that men 
and women may conserve health, may fit themselves to be 
citizens of a free country, and may perform their duties 
as citizens. In other words, men and women must have 
leisure, which the Athenians called "freedom" or liberty. 
In the second place, the earnings of men and women must 
be greater, so that they may live under conditions condu- 
cive to health and to mental and moral development 

Our American ideals cannot be attained unless an end is 
put to the misery due to poverty. 57 

These demands for shorter working time, for higher earn- 
ings and for better conditions cannot conceivably be met 
unless the productivity of man is increased. No mere re- 

57 See American Ideals. 



68" the words of 

distribution of the profits of industry could greatly improve 
the condition of the working classes. Indeed, the principal 
gain that can be expected from any such redistribution of 
profits is that it may remove the existing sense of injustice 
and discontent^ which are the greatest obstacles to efficiency. 

E F FICIENCY ' S TEST 

The real test of efficiency comes when success has to be 
struggled for. 

ELIMINATION OF WASTE 

I believe all intelligent and enlightened thinkers will 
recognize, that the only way permanently and appreciably 
to better the condition of labor, is to increase productivity 
and to eliminate the waste. That is what scientific manage- 
ment is. It means merely getting more with less effort. It 
means stopping all waste effort either in the exertion of the 
individuals or in goods. Just how you are going to apply the 
principle is a matter of detail. It is most important that it 
shall be applied democratically. It cannot be successfully ap- 
plied otherwise in the long run; that is, both employer and 
employee must come to recognize the fact that the elimina- 
tion of waste is beneficial to both sides and that they must 
cooperate to produce the best results and the most effective 
methods of production. 58 

EMERSON 

I have been indulging in Emerson alsoand can con- 
scientiously say that my admiration for him is on the in- 
crease. I have read a few sentences of his, which are alone 
enough to make the man immortal. 

EMPLOYER AND EMPLOYEE 59 

[125] Don't assume that the interests of employer and 
employee are necessarily hostilethat what is good for one 

58 Repeated under Employer and Employee. 

59 See also Collective Bargaining, Unrestricted Power. 



Justice Urandeis 69 

is necessarily bad for the other. The opposite is more apt 
to be the case. While they have different interests, they are 
likely to prosper or suffer together. 

* 

Both labor and employers should bear constantly in mind 
that each is his brother's keeper; that every employer is 
injured by any single employer who does labor a wrong; 
and that every laboring man and every union is injured by 
every individual unionist who does an employer wrong. The 
influence of a single wrongful act by one who can be classi- 
fied, is tremendous. It affects every other member of the 
class. When an employer acts improperly toward his em- 
ployees, it is the business of other employers to see that 
such conduct is prevented, for his wrong will injure them. 
And in the same way any lack of fairness and any act of 
lawlessness on the part of labor is certain to injure other 
workers and the unions as a whole, and the individual mem- 
bers of labor unions with employers. 60 



Our employers can no more afford to be absolute masters 
of their employees than they could afford to submit to the 
mastery of their employees. 61 

* 

Nine-tenths of the serious controversies which arise in life 
result from misunderstanding, result from one man not 
knowing the facts which to the other man seem important, 
or otherwise failing to appreciate his point of view. A prop- 
erly conducted conference involves a frank disclosure of 
such facts patient, careful argument, willingness to listen 
and to consider. 62 

60 See also Unions. 

61 Repeated under Industrial Democracy. 

62 Repeated under Proper Conferences, Serious Controversies. 



70 * the words of 

Bluff and bluster have no place there. The spirit must be, 
"Come, let us reason together/ 7 Such a conference is im- 
possible where the employer clings to the archaic belief 
commonly expressed in the words, "This is my business, 
and I will run it as I please/' It is impossible where the 
labor representative, swaggering in his power to inflict in- 
jury by strike and boycott, is seeking an unfair advantage 
of the employers, or would seek to maintain even a proper 
position by improper means. Such conferences will succeed 
only if employer and employee recognize that, even if there 
be no so-called system of profit-sharing, they are in a most 
important sense partners, and that each is entitled to a 
patient hearing, with a mind as open as the prejudice of 
self-interest permits. 63 

* 

Employer and employee must come to recognize the fact 
that the elimination of waste is beneficial to both sides and 
that they must cooperate to produce the best results and 
the most effective methods of production. 64 

EMPLOYERS AND UNIONS 

[130] The employers' refusal to deal with a union is ordi- 
narily due to erroneous reasoning or false sentiment. The 
man who refuses to deal with the union acts ordinarily from 
a good motive. He is impressed with "union dictation." He 
is apt to think "this is my business and the American has 
the right of liberty of contract/' He honestly believes that 
he is standing up for a high principle and is willing often 
to run the risk of having his business ruined rather than 
abandon that principle. They have not thought out clearly 
enough that liberty means exercising one's rights consist- 
ently with a like exercise of rights by other people; that 
liberty is distinguished from license in that it is subject to 

63 Repeated under Proper Conferences. 
* 4 See Elimination of Waste. 



Justice TLrandeis 71 

certain restrictions and that no one can expect to secure 
liberty in the sense in which we recognize it in America 
without having his rights curtailed in those respects in 
which it is necessary to limit them in the general public 
interest. 65 The failure of many employers to recognize these 
simple truths is a potent reason why employers have not 
been willing to deal with unions. I think our employers, as 
a rule, are kind-hearted; they mean to do right; they mean 
to be just; and there is no difference between the men who 
have fought the hardest against labor unions and those who 
have yielded to and dealt with labor unions in that respect, 
except that the former have not had that education which 
comes from actual active cooperation with unions in the 
solution of these problems. 66 



I should say to those employers who stand for the open 
shop, that they ought to recognize that it is for their interests 
as well as that of the community that unions should be 
powerful and responsible; that it is to their interests to build 
up the unions, to aid as far as they can in making them 
stronger, and to create conditions under which the unions 
shall be led by the ablest and most experienced men. A large 
part of all union activity today, and in the past, has been 
devoted to the struggle for existence; and that fact accounts 
also for a large part of union excesses. As nearly as possible 
union existence should be assured so that the efforts of the 
leaders might be devoted to solving the fundamental and 
difficult problems of discipline and organization, and the 
working out of other problems of the trades. 67 

ENGLAND 

England 1 is nearer civilization than any other country. 
That it is nearer democracy seems clear. As I watch events 

65 Repeated under Liberty. 66 See also Unions. e7 See also Unions. 



72 the words of 

from day to day I am ever more impressed with the existence 
of a potent public opinionexpressing itself manfully and 
with much immediate effect. Our own machinery referen- 
dum, initiative, primary elections, and elective officials 
galore is a miserable substitute for the alert, intelligent 
watchfulness which is reflected generally in the press and 
which finds, in the interrogations in the House of Commons 
and in letters to the Times, the means of uncovering wrong 
action before it has become irremediable or has ceased to 
be of moment. 

ENLIGHTENED UNSELFISHNESS 

We ought to develop enlightened unselfishness, as a sub- 
stitute for the old so-called enlightened selfishness; and 
enlightened unselfishness would give us all a great deal more 
than we have. 

E PLURIBUS UNUM 

E pluribus unumOut of many one was the motto 
adopted by the founders of the Republic when they formed 
a union of the thirteen states. To these we have added, 
from time to time, thirty-five more. The founders were con- 
vinced, as we are, that a strong nation could be built through 
federation. They were also convinced, as we are, that in 
America, under a free government, many peoples would 
make one nation. Throughout all these years we have ad- 
mitted to our country and to citizenship immigrants from 
the diverse lands of Europe. We had faith that thereby we 
would best serve ourselves and mankind. This faith has been 
justified. The United States has grown great. The immi- 
grants and their immediate descendants have proved them- 
selves as loyal as any citizens of the country. Liberty has 
knit us closely together as Americans. 68 Note the common 
devotion to our country's emblem expressed at the recent 

68 Repeated under Liberty. 



Justice "Brandeis -73 

Flag Day celebration in New York by boys and girls repre- 
senting more than twenty different nationalities warring 
abroad. 

EQUALITY OF OPPORTUNITY 

[135] I have many opinions, but I am not a doctrinaire. 
My habit of mind has been to move from one problem to 
another, giving to each, while it is before me, my undivided 
study. I am a Democrat, but I have laid most stress on the 
little *d/ Give me a free field. Provide equality of oppor- 
tunity and we attain the New Freedom. 69 

EXCESSES 

Excesses of competition lead to monopoly, as excesses of 
liberty lead to absolutism. The extremes meet. 70 

EXCESSES OF CAPITAL 

The greatest factors making for communism, socialism, 
or anarchy among a free people are the excesses of capital; 
because, as Lincoln said of slavery, "Every drop of blood 
drawn with the lash shall be requited by another drawn 
with the sword." It is certain that among a free people 
every excess of capital must in time be repaid by the exces- 
sive demands of those who have not the capital. Every 
act of injustice on the part of the rich will be met by another 
act or many acts of injustice on the part of the people. 71 

* 

The immense corporate wealth will necessarily develop a 
hostility from which much trouble will come to us unless 
the excesses of capital are curbed, through the respect for 
law, as the excesses of democracy were curbed seventy-five 
years ago. 72 

69 Repeated under New Freedom. 

70 Repeated under Regulated Competition. 

71 Repeated under People and Rich. 

72 Repeated under Legal Profession. 



74* the words of 

EXISTING INSTITUTIONS 

Seek for betterment within the broad lines of existing 
institutions. Do so by attacking evil in situ; and proceed 
from the individual to the general. Remember that progress 
is necessarily slow; that remedies are necessarily tentative; 
that because of varying conditions there must be much and 
constant enquiry into facts . . . and much experimenta- 
tion; and that always and everywhere the intellectual, moral 
and spiritual development of those concerned will remain 
an essential and the main factor in real betterment. 73 

This development of the individual is, thus, both a neces- 
sary means and the end sought For our objective is the mak- 
ing of men and women who shall be free, self-respecting 
members of a democracy and who shall be worthy of re- 
spect. Improvement in material conditions of the worker 
and ease are the incidents of better conditions valuable 
mainly as they may ever increase opportunities for develop- 
ment. 



EXPERIMENTATION 74 



[140] The people of the United States are now confronted 
with an emergency more serious than war. Misery is wide- 
spread, in a time, not of scarcity, but of overabundance. 
The long-continued depression has brought unprecedented 
unemployment, a catastrophic fall in commodity prices, and 
a volume of economic losses which threatens our financial 
institutions. Some people believe that the existing condi- 
tions threaten even the stability of the capitalistic system. 
Economists are searching for the causes of this disorder and 
are re-examining the basis of our industrial structure. Busi- 
ness men are seeking possible remedies. Most of them realize 
that failure to distribute widely the profits of industry has 
been a prime cause of our present plight. But, rightly or 

7S Repeated under Main Factor in Social Betterment. 
7 * See also United States Supreme Court. 



Justice "Brandeis * 7 5 

wrongly, many persons think that one of the major con- 
tributing causes has been unbridled competition. Increas- 
ingly, doubt is expressed whether it is economically wise, or 
morally right, that men should be permitted to add to the 
producing facilities of an industry which is already suffering 
from overcapacity. In justification of that doubt, men point 
to the excess capacity of our productive facilities resulting 
from their vast expansion without corresponding increase 
in the consumptive capacity of the people. They assert that 
through improved methods of manufacture, made possible 
by advances in science and invention and vast accumula- 
tion of capital, our industries had become capable of pro- 
ducing from 30 to 100 per cent more than was consumed 
even in days of vaunted prosperity; and that the present 
capacity will, for a long time, exceed the needs of business. 
All agree that irregularity in employment the greatest of 
our evils cannot be overcome unless production and con- 
sumption are more nearly balanced. 75 Many insist there 
must be some form of economic control. There are plans 
for proration. There are many proposals for stabilization. 
And some thoughtful men of wide business experience insist 
that all projects for stabilization and proration must prove 
futile unless, in some way, the equivalent of the certificate 
of public convenience and necessity is made a prerequisite 
to embarking new capital in an industry in which the 
capacity already exceeds the production schedules. 

Whether that view is sound nobody knows. The objec- 
tions to the proposal are obvious and grave. The remedy 
might bring evils worse than the present disease. The ob- 
stacles to success seem insuperable. The economic and 
social sciences are largely uncharted seas. 76 We have been 
none too successful in the modest essays in economic con- 
trol already entered upon. The new proposal involves a vast 

75 Repeated under Irregularity of Employment. 

76 Repeated under Uncharted Seas. 



76 the words of 

extension of the area of control. Merely to acquire the 
knowledge essential as a basis for the exercise of this multi- 
tude of judgments would be a formidable task; and each 
of the thousands of these judgments would call for some 
measure of prophecy. Even more serious are the obstacles 
to success inherent in the demands which execution of the 
project would make upon human intelligence and upon the 
character of men. Man is weak and his judgment is at best 
fallible. 77 

Yet the advances in the exact sciences and the achieve- 
ments in invention remind us that the seemingly impossible 
sometimes happens. There are many men now living who 
were in the habit of using the age-old expression: "It is as 
impossible as flying/' The discoveries in physical science, 
the triumphs in invention, attest the value of the process of 
trial and error. 78 In large measure, these advances have been 
due to experimentation. In those fields experimentation has, 
for two centuries, been not only free but encouraged. Some 
people assert that our present plight is due, in part, to the 
limitations set by courts upon experimentation in the fields 
of social and economic science; and to the discouragement 
to which proposals for betterment there have been subjected 
otherwise. There must be power in the States and the nation 
to remold, through experimentation, our economic prac- 
tices and institutions to meet changing social and economic 
needs. I cannot believe that the framers of the Fourteenth 
Amendment, or the states which ratified it, intended to 
deprive us of the power to correct the evils of technological 
unemployment and excess productive capacity which have 
attended progress in the useful arts. 

To stay experimentation in things social and economic 
is a grave responsibility. Denial of the right to experiment 
may be fraught with serious consequences to the nation. It 

77 Repeated under Man. 

78 Repeated under Trial and Error. 



Justice 'Brandeis * 7 7 

is one of the happy incidents of the federal system that a 
single courageous state may ? if its citizens choose, serve as 
a laboratory; and try novel social and economic experiments 
without risk to the rest of the country. This Court has the 
power to prevent an experiment. We may strike down the 
statute which embodies it on the ground that, in our 
opinion, the measure is arbitrary, capricious, or unreason- 
able. We have power to do this, because the due process 
clause has been held by the Court applicable to matters of 
substantive law as well as to matters of procedure. But, 
in the exercise of this high power, we must be ever on our 
guard, lest we erect our prejudices into legal principles. If 
we would guide by the light of reason, we must let our 
minds be bold. 79 

* 

Our social and industrial welfare demands that ample 
scope should be given for social as well as mechanical in- 
vention. It is a condition not only of progress but of con- 
serving that which we have. Nothing could be more revolu- 
tionary than to close the door to social experimentation. 
The whole subject of woman's entry into industry is an 
experiment. And surely the federal constitution itself per- 
haps the greatest of human experiments 80 does not pro- 
hibit such modest attempts as the woman's minimum-wage 
act to reconcile the existing industrial system with our striv- 
ing for social justice and the preservation of the race. 

FACTS 81 

Whether a measure relating to the public welfare is arbi- 
trary or unreasonable, whether it has no substantial relation 
to the end proposed, is obviously not to be determined by 
assumptions or by a priori reasoning. The judgment should 

79 See Boldness. 

80 See Constitution. 

81 See also Logic of Realities. 



73* the words of 

be based upon a consideration of relevant facts, actual or 
possible Ex facto -jus oritur. That ancient rule must pre- 
vail in order that we may have a system of living law. 82 

* 

The difficulty in deciding any question that comes up is 
really the difficulty in getting at the facts. 

# 

What we must do in America is not to attack our judges, 
but to educate them. All judges should be made to feel, as 
many judges already do, that the things needed to protect 
liberty are radically different from what they were fifty years 
back. In some courts the judges' conceptions of their own 
powers must also change. Some judges have decided a law 
unconstitutional simply because they considered the law 
unwise. These judges should be made to feel that they have 
no such right, that their business is not to decide whether 
the view taken by the legislature is a wise view, but whether 
a body of men could reasonably hold such a view. In the 
past the courts have reached their conclusions largely 
deductively from preconceived notions and precedents. The 
method I have tried to employ in arguing cases before them 
has been inductive, reasoning from the facts. 83 

FAILURE OF LIFE INSURANCE COMPANIES 

[145] The causes of failure of life insurance companies 
have been excessive expense, unsound investment, or dis- 
honest management 

FALSIFICATION OF BOOKS 

In the case of common criminals flight is accepted as 
confession of guilt. With financiers and business men falsifi- 
cation of books has hitherto been considered the strongest 

82 See also Lawyers' Training. 

83 Repeated under Judges. 



'Justice 'Brandeis 7P 

evidence of guilt. Yet the falsification of the books of these 
companies has been a persistent practice. Secret ledgers have 
been opened in which were entered questionable invest- 
ments and more questionable expenditures. Hundreds of 
thousands spent "for legislative purposes" were charged up 
in real estate accounts. So elaborate has been the system of 
fraudulent entries that after months of investigation the 
particular form of rascality embodied in the Equitable's 
$685,000 Mercantile Trust Company, so-called "y e H w- 
dog/ y account has not yet been detected. 

FEAR, REPRESSION, HATE 

Fear breeds repression . . . repression breeds hate . . -. 
hate menaces stable government. 84 

FINANCIAL DEPENDENCE 

American democracy rests upon the basis of the free citi- 
zen. 85 We accord (to the men) universal suffrage. We urge 
strenuously upon every voter the duty of exercising this 
right. We insist that the voter should exercise it in the inter- 
est of others as well as of himself. We give thus to the citi- 
zen the rights of a free man. We impose upon him a duty 
that can be intrusted with safety only to free men. Politi- 
cally, the American workingman is free so far as law can 
make him so. But is he really free? Can any man be really 
free who is constantly in danger of becoming dependent for 
mere subsistence upon somebody and something else than 
his own exertion and conduct? Men are not free while finan- 
cially dependent upon the will of other individuals. Financial 
dependence is consistent with freedom only where claim to 
support rests upon right, and not upon favor. 8 ' 



. 86 



84 Repeated under Freedom of Speech. 

85 See American Democracy. 

86 See also Greatest Danger, Industrial Absolutism, Industrial 
Liberty. 



SO * the words of 

FINANCIAL INDEPENDENCE 87 

There is no such thing as freedom for a man who under 
normal conditions is not financially free. We must there- 
fore find means to create in the individual financial inde- 
pendence against sickness, accidents, unemployment, old 
age, and the dread of leaving his family destitute, if he suf- 
fer premature death. For we have become practically a world 
of employees; and ? if a man is to have real freedom of con- 
tract in dealing with his employer, he must be financially 
independent of these ordinary contingencies. Unless we 
protect him from this oppression, it is foolish to call him 
free. 



[150] If the American is to be fitted for his task as ruler, 
he must have besides education and industrial liberty also 
some degree of financial independence. Our existing indus- 
trial system is converting an ever increasing percentage of 
the population into wage-earners; and experience teaches 
us that a large part of these become at some time financial 
dependents, by reason of sickness, accident, invalidity, su- 
perannuation, unemployment, or premature death of the 
bread-winner of the family. Contingencies like these, which 
are generally referred to in the individual case as misfor- 
tunes, are now recognized as ordinary incidents in the life 
of the wage-earner. The need of providing indemnity against 
financial losses from such ordinary contingencies in the 
workingrnan's life has become apparent and is already being 
supplied in other countries. 

FREEDOM OF SPEECH 

Those who won our independence believed that the final 
end of the State was to make men free to develop their 
faculties, and that in its government the deliberative forces 

87 See also Greatest Danger. 



Justice TZrandeis Si 

should prevail over the arbitrary. They valued liberty both 
as an end and as a means. They believed liberty to be the 
secret of happiness and courage to be the secret of liberty. 
They believed that freedom to think as you will and to 
speak as you think are means indispensable to the discovery 
and spread of political truth; that without free speech and 
assembly discussion would be futile; that with them, dis- 
cussion affords ordinarily adequate protection against the 
dissemination of noxious doctrine; that the greatest menace 
to freedom is an inert people; 8B that public discussion is a 
political duty; and that this should be a fundamental prin- 
ciple of the American Government. They recognized the 
risks to which all human institutions are subject. But they 
knew that order cannot be secured merely through fear of 
punishment for its infraction; that it is hazardous to dis- 
courage thought, hope, and imagination; that fear breeds 
repression; that repression breeds hate; that hate menaces 
stable government; 89 that the path of safety lies in the 
opportunity to discuss freely supposed grievances and pro- 
posed remedies; and that the fitting remedy for evil counsels 
is good ones. Believing in the power of reason as applied 
through public discussion, they eschewed silence coerced by 
law the argument of force in its worst form. 90 Recogniz- 
ing the occasional tyrannies of governing majorities, they 
amended the Constitution so that free speech and assembly 
should be guaranteed. 

Fear of serious injury cannot alone justify suppression of 
free speech and assembly. Men feared witches and burnt 
women. It is the function of speech to free men from the 
bondage of irrational fears. 91 To justify suppression of free 
speech there must be reasonable ground to fear that the 

88 Repeated under Greatest Menace to Freedom. 

89 See Fear, Repression, Hate. 

90 See Argument of Force. 

91 Repeated under Function of Speech. 



$2* the words o j 

serious evil will result if free speech is practiced. There must 
be reasonable ground to believe that the danger appre- 
hended is imminent. There must be reasonable ground 
to believe that the evil to be prevented is a serious 
one. Every denunciation of existing law tends in some 
measure to increase the probability that there will be 
violation of it. Condonation of a breach enhances the 
probability. Expressions of approval add to the probability. 
Propagation of the criminal state of mind by teaching 
syndicalism increases it. Advocacy of law-breaking heightens 
it still further. But even advocacy of violation, however 
reprehensible morally, is not a justification for denying free 
speech where the advocacy falls short of incitement and 
there is nothing to indicate that the advocacy would be 
immediately acted on. The wide difference between advo- 
cacy and incitement, between preparation and attempt, be- 
tween assembling and conspiracy, must be borne in mind. 
In order to support a finding of clear and present danger it 
must be shown either that immediate serious violence was 
to be expected or was advocated, or that the past conduct 
furnished reason to believe that such advocacy was then 
contemplated. 

Those who won our independence by revolution were not 
cowards. They did not fear political change. They did not 
exalt order at the cost of liberty. To courageous, self-reliant 
men, with confidence in the power of free and fearless rea- 
soning applied through the processes of popular govern- 
ment, no danger flowing from speech can be deemed clear 
and present, unless the incidence of the evil apprehended is 
so imminent that it may befall before there is opportunity 
for full discussion. If there be time to expose through dis- 
cussion the falsehood and fallacies, to avert the evil by the 
processes of education, the remedy to be applied is more 
speech, not enforced silence. Only an emergency can jus- 
tify repression* Such must be the rule if authority is to be 



justice 'Brandeis '83 

reconciled with freedom. Such, in my opinion, is the com- 
mand of the Constitution. It is therefore always open to 
Americans to challenge a law abridging free speech and 
assembly by showing that there was no emergency justify- 
ing it. 

Moreover, even imminent danger cannot justify resort to 
prohibition of these functions essential to effective democ- 
racy, unless the evil apprehended is relatively serious. Pro- 
hibition of free speech and assembly is a measure so strin- 
gent that it would be inappropriate as the means for avert- 
ing a relatively trivial harm to society. A police measure may 
be unconstitutional merely because the remedy, although 
effective as means of protection, is unduly harsh or oppres- 
sive. Thus, a State might, in the exercise of its police power, 
make any trespass upon the land of another a crime, regard- 
less of the results or of the intent or purpose of the tres- 
passer. It might, also, punish an attempt, a conspiracy, or 
an incitement to commit the trespass. But it is hardly con- 
ceivable that this Court would hold constitutional a statute 
which punished as a felony the mere voluntary assembly 
with a society formed to teach that pedestrians had the 
moral right to cross uninclosed, unposted, waste lands and 
to advocate their doing so, even if there was imminent dan- 
ger that advocacy would lead to a trespass. The fact that 
speech is likely to result in some violence or in destruction 
of property is not enough to justify its suppression. There 
must be the probability of serious injury to the State. Among 
free men, the deterrents ordinarily to be applied to prevent 
crime are education and punishment for violations of the 
law, not abridgment of the rights of free speech and 

assembly. 

* 

The extent to which Congress may, under the Constitu- 
tion, interfere with free speech, was . . . declared by a 
unanimous Court to be this: 



8 4 . the words of 

"The question in every case is whether the words . . . 
are used in such circumstances and are of such a nature 
as to create a clear and present danger that they will 
bring about the substantive evils that Congress has a 
right to prevent. It is a question of proximity and 
degree." 

This is a rule of reason. Correctly applied, it will preserve 
the right of free speech both from suppression by tyran- 
nous, well-meaning majorities, and from abuse by irrespon- 
sible, fanatical minorities. Like many other rules for human 
conduct, it can be applied correctly only by the exercise of 
good judgment; and to the exercise of good judgment calm- 
ness is, in times of deep feeling and on subjects which excite 
passion, as essential as fearlessness and honesty. 92 The ques- 
tion whether in a particular instance the words spoken or 
written fall within the permissible curtailment of free speech 
is, under the rule enunciated by this Court, one of degree; 
and because it is a question of degree the field in which the 
jury may exercise its judgment is necessarily a wide one. But 
its field is not unlimited. The trial provided for is one by 
judge and jury, and the judge may not abdicate his function. 
If the words were of such a nature and were used under 
such circumstances that men, judging in calmness, could not 
reasonably say that they created a clear and present danger, 
that they would bring about the evil which Congress sought 
and had a right to prevent, then it is the duty of the trial 
judge to withdraw the case from the consideration of the 
jury; and, if he fails to do so, it is the duty of the appellate 
court to correct the error. . . . 

The nature and possible effect of a writing cannot be 
properly determined by culling here and there a sentence 
and presenting it separated from the context. . . . Some- 
times it is necessary to consider, in connection with it, other 

92 See Calmness. 



justice TSrandeis -85 

evidence which may enlarge or otherwise control its mean- 
ing, or which may show that it was circulated under circum- 
stances which gave it a peculiar significance or effect. . . . 
The jury which found men guilty for publishing news 
items or editorials like those here in question must have 
supposed it to be within their province to condemn men, 
not merely for disloyal acts, but for a disloyal heart; pro- 
vided only that the disloyal heart was evidenced by some 
utterance. To prosecute men for such publications reminds 
of the days when men were hanged for constructive treason. 
And, indeed, the jury may well have believed from the 
charge that the Espionage Act had in effect restored the 
crime of constructive treason. To hold that such harmless 
additions to or omissions from news items, and such impo- 
tent expressions of editorial opinion, as were here shown, 
can afford the basis even of a prosecution, will doubtless 
discourage criticism of the policies of the Government. To 
hold that such publications can be suppressed as false re- 
ports, subjects to new perils the constitutional liberty of the 
press, already seriously curtailed in practice under powers 
assumed to have been conferred upon the postal authorities. 
Nor will this grave danger end with the passing of the war. 
The constitutional right of free speech has been declared 
to be the same in peace and in war. In peace, too, men may 
differ widely as to what loyalty to our country demands; and 
an intolerant majority, swayed by passion or by fear, may be 
prone in the future, as it has often been in the past, to stamp 
as disloyal opinions with which it disagrees. Convictions 
such as these, besides abridging freedom of speech, threaten 
freedom of thought and of belief. 



Full and free exercise of this right [to teach the truth as 
he sees it] by the citizen is ordinarily also his duty; for its 
exercise is more important to the Nation than it is to him- 



8(5 . the words of 

self. Like the course of the heavenly bodies, harmony in 
national life is a resultant of the straggle between contend- 
ing forces. 93 In frank expression of conflicting opinion lies 
the greatest promise of wisdom in governmental action; and 
in suppression lies ordinarily the greatest peril. 

# 

The right to speak freely concerning functions of the Fed- 
eral Government is a privilege of immunity of every citizen 
of the United States which, even before the adoption of the 
Fourteenth Amendment, a State was powerless to curtail. 

# 

[155] Although the rights of free speech and assembly are 
fundamental, they are not in their nature absolute. Their 
exercise is subject to restriction, if the particular restriction 
proposed is required in order to protect the State from de- 
struction or from serious injury, political, economic, or 
moral. That the necessity which is essential to a valid re- 
striction does not exist unless speech would produce, or is 
intended to produce, a clear and imminent danger of some 
substantive evil which the State constitutionally may seek 
to prevent has been settled. 

* 

The powers of the courts to strike down an offending law 
are no less when the interests involved are not property 
rights, but the fundamental personal rights of free speech 
and assembly. 

# 

I am unable to assent to the suggestion in the opinion of 
the Court that assembling with a political party, formed to 
advocate the desirability of a proletarian revolution by mass 
action at some date necessarily far in the future, is not a 
right within the protection of the Fourteenth Amendment. 

93 Repeated under Harmony in National Life. 



Justice 'Brandeis 8 7 

# 

The fundamental right of free men to strive for better 
conditions through new legislation and new institutions will 
not be preserved, if efforts to secure it by argument to fellow 
citizens may be construed as criminal incitement to disobey 
the existing lawmerely because the argument presented 
seems to those exercising the judicial power to be unfair in 
its portrayal of existing evils, mistaken in its assumptions, 
unsound in reasoning, or intemperate in language. No ob- 
jections more serious than these can, in my opinion, reason- 
ably be made to the arguments presented in The Price We 
Pay. 

FUNCTION OF SPEECH 

It is the function of speech to free men from the bondage 
of irrational fears. 94 

GOD'S PRESENCE 

[160] I do not understand what you mean by experiencing 
God's presence. I have faced many trials, had to make grave 
decisions, tasted of the sweet and bitter, was depressed and 
elated, worked and studied, and thought and meditated. I 
have lived through many a moment in which, according to 
the faithful, God should have spoken and helped. But I can- 
not say that he did or didn't. I sensed no power outside of 
myself working along with me. Nor would I describe what 
was going on in me as supernatural, irrational, or mysteri- 
ous. I believe that I was reasoning through by concentrating 
and recalling what good men had said and done before me. 
To say that it was God who inspired me to give up my pri- 
vate practice and fight for women's welfare and against mo- 
nopolies is to employ language that, I repeat, I do not under- 
stand. I have now and then come across plausible reasons 
for the existence of God but never what I should call proof. 

94 See Freedom of Speech. 



88* the words o j 

And definitely never have I met a man who spoke convinc- 
ingly of experiencing God's presence. 

GOD'S PURPOSE 

In cross-examining a witness I tried to establish the truth 
or falsity of what he was saying. I probed into his mind to 
know what was going on there. But I should not say that my 
efforts were altogether successful. There was always an area 
of doubt, barred cells, that remained sealed off. How then 
can I hope to read the Cosmic Mind, as you call it, or 
divine its purpose? 

GOOD BARGAIN 

The old idea of a good bargain was a transaction in which 
one man got the better of another. The new idea of a good 
contract is a transaction which is good for both parties to it. 

GOVERNMENT AS LAWBREAKER 

Decency, security, and liberty alike demand that Govern- 
ment officials shall be subjected to the same rules of conduct 
that are commands to the citizen. In a government of law, 
existence of the government will be imperiled if it fails to 
observe the law scrupulously. Our Government is the po- 
tent, the omnipresent teacher. For good or for ill, it teaches 
the whole people by its example. Crime is contagious. If the 
Government becomes a lawbreaker, it breeds contempt for 
law; it invites every man to become a law unto himself; it 
invites anarchy. To declare that in the administration of the 
criminal law the end justifies the meansto declare that the 
Government may commit crimes in order to secure the con- 
viction of a private criminal would bring terrible retribu- 
tion. Against that pernicious doctrine this Court should 
resolutely set its face. 



Justice ftrandeis 8 9 

# 

The Government may set decoys to entrap criminals. But 
it may not provoke or create a crime and then punish the 
criminal, its creature. 

GOVERNMENT CONTROL 

[165] I have no rigid social philosophy. I have been too 
intense on concrete problems of practical justice. And yet 
I can see that the tendency is steadily toward governmental 
control. The Government must keep order not only physi- 
cally but socially. In old times the law was meant to protect 
each citizen from oppression by physical force. But we have 
passed to a subtler civilization; from oppression by force we 
have come to oppression in other ways. And the law must 
still protect a man from the things that rob him of his free- 
dom, whether the oppressing force be physical or of a 
subtler kind. 95 

GOVERNMENT EMPLOYEES 

We want men to think. We want every man in the serv- 
ice, of the three or four hundred thousand who are there, 
to recognize that he is a part of the governing body, and 
that on him rests responsibility within the limits of his 
employment just as much as upon the man on top. They 
cannot escape such responsibility. . . . They cannot be 
worthy of the respect and admiration of the people unless 
they add to the virtue of obedience some other virtues the 
virtues of manliness, of truth, of courage, of willingness to 
risk positions, of the willingness to risk criticisms, of the 
willingness to risk the misunderstandings that so often come 
when people do the heroic thing. 

GOVERNMENT INTRUSION 

Experience should teach us to be most on our guard to 
protect liberty when the Government's purposes are benefi- 

95 See also Law and Life, Law's Function, Lawyers* Special Obliga- 
tion. 



90* the words of 

cent. Men born to freedom are naturally alert to repel inva- 
sion of their liberty by evil-minded rulers. The greatest 
dangers to liberty lurk in insidious encroachment by men 
of zeal, well-meaning but without understanding. 96 

* 

The makers of our Constitution undertook to secure con- 
ditions favorable to the pursuit of happiness. They recog- 
nized the significance of man's spiritual nature, of his feel- 
ings, and of his intellect. They knew that only a part of the 
pain, pleasure, and satisfactions of life are to be found in 
material things. They sought to protect Americans in their 
beliefs, their thoughts, their emotions, and their sensations. 
They conferred, as against the Government, the right to be 
let alone the most comprehensive of rights and the right 
most valued by civilized men. To protect that right, every 
unjustifiable intrusion by the Government upon the privacy 
of the individual, whatever the means employed, must be 
deemed a violation of the Fourth Amendment. And the use, 
as evidence in a criminal proceeding, of facts ascertained by 
such intrusion must be deemed a violation of the Fifth. 97 

GREATEST DANGER 

There cannot be liberty without financial independence, 
and the greatest danger to the people of the United States 
today is in becoming, as they are gradually more and more, 
a class of employees. 98 

GREATEST ECONOMIC MENACE 

[170] The economic menace of past ages was the dead 
hand y which gradually acquired a large part of all available 
lands. The greatest economic menace of today is a very 

96 Repeated under Liberty's Greatest Danger; see also Wire Tapping. 
ST See also Wire Tapping. 

98 See also Financial Dependence, Financial Independence, Indus- 
trial Absolutism. 



Justice 'Brandeis p 1 

live hand, these great insurance companies which control 
so large a part of our quick capital. 

GREATEST GOOD OF GREATEST NUMBER 

Here and there you will find a herored-blooded., and 
courageous loving manhood more than wealth, place or 
securitywho dared to fight for independence and won. 
Here and there you may find the martyr, who resisted in 
silence and suffered with resignation. But America, which 
seeks "the greatest good of the greatest number/' cannot be 
content with conditions that fit only the hero, the martyr 
or the slave." 

GREATEST MENACE TO FREEDOM 

The greatest menace to freedom is an inert people, 1 

GREATEST PROBLEM 

The Greatest Problem before the American people in this 
generation [is] the problem of reconciling our industrial sys- 
tem with the political democracy in which we live. 

GREAT PHYSICIANS 

The great physicians are those who in addition to that 
knowledge of therapeutics which is open to all, know not 
merely the human body but the human mind and emotions, 
so as to make themselves the proper diagnosisto know the 
truth which their patients failed to disclose and who add to 
this an influence over the patient which is apt to spring from 
a real understanding of him. 2 

HALF FREE AND HALF SLAVE 

[175] We are confronted in the twentieth century, as we 
were in the nineteenth century, with an irreconcilable con- 

99 See America, American Ideals. 

1 See Freedom of Speech. 

2 Repeated under Lawyers' Knowledge. 



92* the words of 

flict. Our democracy cannot endure half free and half slave. 
The essence of the trust is a combination of the capitalist, 
by the capitalist, for the capitalist. 3 

ALEXANDER HAMILTON 

Hamilton was an apostle of the living law. 

HARMONY IN NATIONAL LIFE 

Like the course of the heavenly bodies, harmony in na- 
tional life is a resultant of the struggle between contending 
forces. 4 

HEBREW LANGUAGE 

Perhaps the most extraordinary achievement in Jewish 
nationalism is the revival of the Hebrew language, making it 
again a language for the common intercourse of men. The 
Hebrew Tongue, called a dead language for so many cen- 
turies, has, in the Jewish colonies and Jerusalem, become 
again a living Mother Tongue. The effect of this common 
language in unifying the Jews is of course great. For the Jews 
of Palestine came literally from the lands of the earth, each 
speaking, except for the use of Yiddish -or Spaniolish, the 
language of the country from which he came, and each re- 
maining almost a stranger to the others. But the effect of 
the Renaissance of the Hebrew Tongue is far greater than 
that of unifying the Jews. It is a potent factor in reviving 
the essentially Jewish spirit. 

* 

It was no ordinary sense of piety that made Ben Jehuda 
seek to introduce the Hebrew language. He recognized what 
the leaders of other peoples seeking rebirth and independ- 
ence have recognized that it is through the national lan- 
guage, expressing the peoples' soul, that the national spirit 

3 Repeated under Monopoly. 

4 See Freedom of Speech. 



Justice TSrandeis * 93 

is aroused, and the national power restored. Despite the 
prevalence of the English Tongue in Ireland, the revival of 
Gaelic became one of the most important factors in the 
movement which has just resulted in securing for the Irish 
their long-coveted home rule. The revival of Flemish was a 
potent factor in the rebirth of the Belgian people, who are 
now giving such good account of themselves. And so it was 
with the revival of Greek, of Bulgarian, and of Serbian. 

THEODOR HERZL 

[180] Among Theodor HerzFs contributions to our under- 
standing of the Jewish problem are these: 

FIRST: The recognition of the fundamental fact that the 
Jews are a people one people. 

SECOND: The recognition of the political truth that the 
emancipation of the Jews can come only through them- 
selves; that is, by democratic means. 

HISTORY 

History is not life. But since only life makes history the 
union of the two is obvious. 

HOME LIFE 

With the improvement in home life, the tone of the 
entire community is raised. 5 

HOW HUMAN BEINGS IMPROVE 

Human beings . . . can be miscd, and raised only, by 
holding up before them that which is higher and that which 
is better than they. 

HUMAN NATURE 

Human nature, like the inanimate, seeks the path of least 
resistance. To think hard and persistently is painful. 6 

5 Repeated under Short Workday. 

6 Repeated under Thinking. 



94* the words of 

# 

[185] The weakness of human nature prevents men from 
being good judges of their own deservings. 7 

# 

Human nature is such that monopolies, however well in- 
tentioned and however well regulated, inevitably become 
oppressive, arbitrary, unprogressive and inefficient. 8 

* 

Human nature ... is never wholly cast down by the 
misfortunes and frailties of our neighbors. 9 

H UMAN TRUTH 

Labor must have throughout an opportunity of testing 
whether that which is recorded as a truth, is really a truth, 
and whether it is the whole truth. Labor must not only be 
convinced of the industrial truthswhich scientific manage- 
ment is disclosing -but must be convinced that those truths 
are consistent with what may be termed human truth. 10 

IMMORTALITY OF THE S O U L n 

I never read anything on the immortality of the soul, and 

I admit having read but little on the subject, that convinced 
me of its truth. What surprises me is that men should be 
longing for an afterlife in which there would apparently be 
nothing to do except to delight in heaven's wonders. For, 
as the theologians have pictured the afterlife, man will be 
there sine body and his soul will rejoin the Deity. If this is 
so then intellectual pursuits will come to an end with bodily 
exertions, for, as a part of the Deity, man will be in posses- 
sion of all knowledge, leaving nothing to occupy him except 

7 See Bankers' Power. 

8 Repeated under Monopoly. 

9 See Blighting Influence of Journalistic Gossip. 

10 See also Labor's Share. 

II See also Jews and Democracy. 



justice TSrandeis * 95 

some kind of spiritual enjoyment. But enjoyment, I thought, 
was more pagan than Jewish or Christian. 

INDIFFERENCE 

[190] I do not consider indifference insuperable. 

INDIVIDUALITY OF PEOPLES 12 

Deeply imbedded in every nation and people is the desire 
for full development the longing for self-expression. In the 
past it has been generally assumed that the full development 
of one people necessarily involved its domination over 
others. Strong nations are apt to become convinced that by 
such domination only does civilization advance. Strong na- 
tions assume their own superiority, and come to believe that 
they possess the divine right to subject other peoples to their 
sway. Soon the belief in the existence of such a right be- 
comes converted into a conviction that a duty exists to 
enforce it. Wars of aggrandizement follow as a natural result 
of this belief. 

This attitude of nations and peoples is the exact correla- 
tive of the position generally assumed by the strong in re- 
spect to other individuals before democracy became a com- 
mon possession. The struggles of the eighteenth and nine- 
teenth centuries, both in peace and in war, were devoted 
largely to overcoming that position as to individuals, to 
establishing the equal right to development of every person, 
and in making clear that equal opportunity for all involves 
this necessary limitation: each man may develop himself so 
far, but only so far as his doing so will not interfere with 
the exercise of a like right by all others. Thus liberty has 
come to mean the right to enjoy life, to acquire property, 
to pursue happiness, in such manner that the exercise of 
the right in each is consistent with the exercise of a like 

12 See also Jewish Individuality, Liberalism and Anti-Jewish Prej- 
udice, National Individuality. 



96* the words of 

right by every other of our fellow citizens. Liberty thus de- 
fined underlies twentieth-century democracy. Liberty thus 
defined exists in a large part of the western world. And even 
where this equal right of all has not yet been accepted as a 
political right, its ethical value is becoming recognized. 13 

The movements of the last century have proved that 
whole peoples have individuality no less marked than that 
of the single person; that the individuality of a people is 
irrepressible, and that internationalism which seeks the ob- 
literation of nations or peoples is unattainable. 14 As democ- 
racy rejects the proposal of the superman who shall rise 
through sacrifice of the many and insists that the full devel- 
opment of each individual is not only a right but a duty to 
society; so the new nationalism proclaims the right and the 
duty of each race or people to develop itself fully. . . . 

No peace which is lasting can ever come until the nations, 
great and small, accept the democratic principle that there 
is and shall be no supernation, to rise through subjection of 
others, and the truth that each people has in it something 
of peculiar value which it can contribute to that civilization 
for which we are all striving. And until that principle is 
accepted, and that truth recognized, unrest must be unend- 
ing. Whatever economic arrangement may be made, how- 
ever perfect and comprehensive may become the machinery 
for enforcing the treaties of the nations, those peoples who 
are not accorded equality of opportunity for full develop- 
ment will prove a source of irritation; injustice will bring its 
inevitable penalty; and the peace of the world will be broken 
again and again, as those little nations of the Balkans have 
taught us in recent years. 

Equal opportunity for all people as for all individuals 
that is the essential of international as well as of national 
justice upon which a peace which is to be permanent must 

13 Repeated under Liberty. 

14 Repeated under National Individuality, 



Justice T$randeis * 9 7 

rest. Unless that fundamental right is recognized and 
granted universally, there will be discord and war in the 
future, as there has been in the past. 

INDIVIDUAL SUFFERING 

We cannot cope with individual suffering unless we suc- 
ceed in removing the cause of that suffering. 

INDUSTRIAL ABSOLUTISM 15 

The next generation must witness a continuing and ever- 
increasing contest between those who have and those who 
have not. The industrial world is in a state of ferment The 
ferment is in the main peaceful, and, to a considerable 
extent, silent; but there is felt today very widely the incon- 
sistency in this condition of political democracy and indus- 
trial absolutism. The people are beginning to doubt whether 
in the long run democracy and absolutism can coexist in the 
same community; beginning to doubt whether there is a 
justification for the great inequalities in the distribution of 
wealth, for the rapid creation of fortunes, more mysterious 
than the deeds of Aladdin's lamp. The people have begun 
to think; and they show evidences on all sides of a tendency 
to act. 16 

INDUSTRIAL DEMOCRACY 

Unrest, to my mind, never can be removed and fortu- 
nately never can be removed by mere improvement of the 
physical and material condition of the workingman. If it 
were possible we should run great risk of improving their 
material condition and reducing their manhood. We must 
bear in mind all the time that however much we may desire 
material improvement and must desire it for the comfort of 
the individual, that the United States is a democracy, and 
that we must have, above all things, men. It is the develop- 

15 See also Financial Dependence. 

16 See also Monopoly. 



98* the words of 

ment of manhood to which any industrial and social system 
should be directed. We Americans are committed not only 
to social justice in the sense of avoiding things which bring 
suffering and harm, like unjust distribution of wealth; but 
we are committed primarily to democracy. The social justice 
for which we are striving is an incident of our democracy, 
not the main end. It is rather the result of democracy per- 
haps its finest expression but it rests upon democracy, 
which implies the rule by the people. 17 And therefore the 
end for which we must strive is the attainment of rule by the 
people, and that involves industrial democracy as well as 
political democracy. That means that the problems of a trade 
should no longer be the problems of the employer alone. 
The problems of his business, and it is not the employer's 
business alone, are the problems of all in it. The union can- 
not shift upon the employer the responsibility for condi- 
tions, nor can the employer insist upon determining, ac- 
cording to his will the conditions which shall exist. The 
problems which exist are the problems of the trade; they are 
the problems of employer and employee. Profit sharing, 
however liberal, cannot meet the situation. That would 
merely mean dividing the profits of business. Such a division 
may do harm or it might do good, dependent on how it is 
applied. 

There must be a division not only of profits, but a divi- 
sion also of responsibilities. The employees must have the 
opportunity of participating in the decisions as to what shall 
be their condition and how the business shall be run. They 
must learn also in sharing that responsibility that they must 
bear, too, the suffering arising from grave mistakes, just as 
the employer must. But the right to assist in making the 
decisions, the right of making their own mistakes, if mis- 
takes there must be, is a privilege which should not be de- 

17 See American Ideals. 



Justice TSrandeis 9 P 

nied to labor. We must insist upon labor sharing the respon- 
sibility for the result of the business. 18 

# 

[195] Prolonged peace and prosperity can rest only on the 
foundation of industrial liberty. Industrial democracy should 
ultimately attend political democracy. Industrial absolutism 
is not merely impossible in this country at the present time, 
but is most undesirable. Our employers can no more afford 
to be absolute masters of their employees than they can 
afford to submit to the mastery of their employees. 19 

# 

Liberty is the greatest developer. Herodotus tells us that 
while the tyrants ruled, the Athenians were no better fight- 
ers than their neighbors; but when freed, they immediately 
surpassed all others. 20 If industrial democracy true cooper- 
ationshould be substituted for industrial absolutism, there 
would be no lack of industrial leaders. 

* 

All of our human experience shows that no one with abso- 
lute power can be trusted to give it up even in part. That has 
been the experience with political absolutism; it must prove 
the same with industrial absolutism. Industrial democracy 
will not come by gift. It has got to be won by those who 
desire it. 

INDUSTRIAL DEMOCRACY AND THINKING 

One hundred years ago the civilized world did not believe 
that it was possible that the people could rule themselves; 
they did not believe that it was possible to have government 
of the people, by the people, and for the people. America in 
the last century proved that democracy is a success. 21 

is See also Unrest. 

19 See Employer and Employee. 

20 Repeated under Liberty. 

21 See America. 



100- t b e words of 

The civilized world today believes that in the industrial 
world self-government is impossible; that we must adhere to 
the system which we have known as the monarchical sys- 
tem, the system of master and servant, or, as now more 
politely called, employer and employee. It rests with this 
century and perhaps with America to prove that as we have 
in the political world shown what self-government can do, 
we are to pursue the same lines in the industrial world. 

And what will that involve? I take it: free thinking. In the 
first place, of course, whether we have an institution mas- 
tered by the employer and employee in the old form or in 
the form of industrial democracy to which we look forward, 
we shall have Obedience. But the obedience will be this: it 
will be obedience to the laws which the people make for 
themselves in a business, and not the laws which are made 
for them and in the making of which they have no part. 
That is the first difference between this industrial democ- 
racy to which we look forward and the old monarchical 
form. 

In the next place, we have a condition in which these 
laws are made for the benefit or mainly for the benefit of 
those who make them, and that is, who do the work. 

And in the third place, we have leaders of industry in- 
stead of masters of industry or captains of industry. 

Those are the great differences. 

And how are they to be attained? 

I take it, also, that there are three things essential. In the 
first place, those who engage in the effort of freeing industry, 
or becoming free, must note this: that in order not to have 
someone as master, they must be master of themselves. That 
is the first rule. 

The second rule is: that when they work, they must work 
with and for others, for the institution of which they are 
a part. 

The third rule is that they must think. Democracy is only 



Justice "Brandeis -104 

possible, industrial democracy, among people who think; 
among people who are above the average intelligence. And 
that thinking is not a heaven-bom thing, that intelligence 
is not a gift that merely comes. It is a gift men make and 
women make for themselves. It is earned, and it is earned 
by effort. There is no effort, to my mind, that is comparable 
in its qualities, that is so taxing to the individual, as to 
think, to analyze fundamentally. 22 

The brain is like the hand. It grows with using. 23 

INDUSTRIAL INJUSTICE 

The real fight today is against the inhuman, relentless 
exercise of capitalistic power. First we had the struggle for 
independence, and the second great struggle in our history 
was to keep the nation whole and abolish slavery. The pres- 
ent struggle in which we are engaged is for social and indus- 
trial justice. 



INDUSTRIAL LIBERTY 24 



[200] Prolonged peace and prosperity can rest only upon 
the foundation of industrial liberty. The peace which em- 
ployers should seek is not the peace of fifty years ago, when 
the employers were absolute masters of the situation. The 
peace which the employers should seek is not the peace of 
mediaeval guilds, with their numberless restrictions. Indus- 
trial liberty must attend political liberty. The lead which 
America takes in the industrial world is no doubt due to our 
unbounded resources; but of these resources none are so 
great as the spirit and the ability incident to a free people. 
We lead the world industrially, not so much because the 
resources of nature are unbounded, as because the faculties 
and aspirations of men are comparatively unfettered, 

22 Repeated under Thinking. 

23 See Brain. 

24 See also Financial Dependence. 



102* the words of 

* 

"Man cannot live by bread alone." Men must have indus- 
trial liberty as well as good wages. 



Can this contradiction our grand political liberty and 
this industrial slavery long coexist? Either political liberty 
will be extinguished or industrial liberty must be restored. 



You cannot have true American citizenship, you cannot 
preserve political liberty, you cannot secure American stand- 
ards of living unless some degree of industrial liberty accom- 
panies it. 

# 

Industrial liberty must rest upon reasonableness. We gain 
nothing by exchanging the tyranny of capital for the tyranny 
of labor. Arbitrary demands must be met by determined 
refusals, also at any cost. 



[205] Industrial liberty, like civil liberty, must rest upon 
the solid foundation of law. Disregard the law in either, 
however good your motives, and you have anarchy. 



Both liberty and democracy are seriously threatened by 
the growth of big business. Today the need is not so much 
for freedom from physical restraint as for freedom from 
economic oppression. 

Already the displacement of the small independent busi- 
ness man by the huge corporation with its myriad of em- 
ployees, its absentee ownership, and its financier control, 
presents a grave danger to our democracy. The social loss is 
great; and there is no economic gain. 



Justice "Brandeis * 1 3 

Political liberty, then, is not enough; it must be attended 
by economic and industrial liberty. 25 

INTELLIGENT SELF-INTEREST 

To reduce the price of gas we need not only honesty but 
also skill, energy and initiative. And this may be best secured 
by following those lines of intelligent self-interest upon 
which the remarkable industrial advance of America has 
proceeded. 

INTERLOCKING DIRECTORATES 26 

There is another reason why interlocking directorates 
must be abolished: namely, the demands of efficiency. Ob- 
viously the only justification for the director's existence is 
that he should direct; which means that he should be an 
absolutely fair and intelligent adviser and critic of the enter- 
prise. The men who are in charge of an enterprise as execu- 
tive officers are supposed to manage, and to possess the re- 
quired energy and determination to go forward. But in a 
well-equipped organization there should be men who will 
check up the manager's judgment and performance. Only 
in this way can continued prosperity be assured. 

For the proper exercise of the functions of director, it is 
essential that he be disinterested; that is, be free from any 
conflicting interest. But it is also essential that he have 
knowledge. Facts, facts, facts, are the only basis on which 
he can properly exercise his judgment. It is as necessary that 
he know intimately the facts concerning the business, as 
that he have only one interest to subserve. Now, no man can 
have such detailed knowledge of the facts of many enter- 
prises. This is due to the limitations of time and place and 
to those other limits set by nature upon human intelligence. 
How can one man know in respect to many large corpora- 

25 See also Liberty, Big Business, Monopoly. 

26 See also Monopoly. 



104- the words of 

tions the facts which a director needs to know in order to 
insure efficient management? 27 

* 

My objection to interlocking directorates is not on the 
assumption that men mean to do wrong. It is because it is 
humanly impossible for a man representing conflicting inter- 
ests on two boards to do right by both, no matter how pure 
his purpose is. 

* 

[210] The practice of interlocking directorates is the root 
of many evils. It offends laws human and divine. Applied to 
rival corporations, it tends to the suppression of competition 
and to violation of the Sherman Law. Applied to corpora- 
tions which deal with each other, it tends to disloyalty and 
to violation of the fundamental law that no man can serve 
two masters. In either event it tends to inefficiency; for it 
removes incentive and destroys soundness of judgment. It is 
undemocratic, for it rejects the platform: "A fair field and 
no favors" substituting the pull of privilege for the push of 
manhood. It is the most potent instrument of the Money 
Trust. Break the control so exercised by the investment 
bankers over railroads, public-service and industrial corpo- 
rations, over banks, life insurance and trust companies, and 
a long step will have been taken toward attainment of the 
New Freedom. 23 

INVESTOR'S SERVILITY 

The large army of small investors, constituting a substan- 
tial majority of all security buyers, are entirely free from 
banker control. Their submission is undoubtedly due, in 
part, to the fact that the bankers control the avenues to 
recognizedly safe investments almost as fully as they do the 

27 See also Efficiency. 

28 See also Bankers' Power, Repeated under New Freedom. 



Justice TZrandeis -105 

avenues to capital. But the investor's servility is due partly, 
also, to his ignorance of the facts. Is it not probable that, if 
each investor knew the extent to which the security he buys 
from the banker is diluted by excessive underwritings, com- 
missions and profits, there would be a strike of capital 
against these unjust exactions? 

IRREGULARITY OF EMPLOYMENT 

Irregularity of employment creates hardships and demor- 
alization of every kind. It is the most sinful waste. 29 



Irregularity in employmentthe greatest of our evils can- 
not be overcome unless production and consumption are 
more nearly balanced. 30 

JEW DEFINITION OF TERM 

Councils of rabbis and others have undertaken at times 
to prescribe by definition that only those shall be deemed 
Jews who professedly adhere to the orthodox or reformed 
faith. But in the connection in which we are considering the 
term, it is certainly not in the power of any single body of 
Jews, or indeed of all Jews collectively, to establish the effec- 
tive definition. The meaning of the word Jewish in the term 
Jewish Problem must be accepted as coextensive with the 
disabilities which it is our problem to remove. It is the non- 
Jews who create the disabilities and in so doing give defini- 
tion to the term Jew. Those disabilities extend substantially 
to all of Jewish blood. The disabilities do not end with a 
renunciation of faith, however sincere. They do not end with 
the elimination, however complete, of external Jewish man- 
nerisms. The disabilities do not end ordinarily until the 
Jewish blood has been so thoroughly diluted by repeated 

29 Repeated under Sinful Waste. 

30 See Experimentation. 



106* the words of 

inter-marriages as to result in practically obliterating the 
Jew. 

And we Jews, by our own acts, give a like definition to 
the term Jew. When men and women of Jewish blood suf- 
fer, because of that fact, and even if they suffer from quite 
different causes, our sympathy and our help goes out to 
them instinctively in whatever country they may live and 
without inquiring into the shades of their belief or unbelief. 
When those of Jewish blood exhibit moral or intellectual 
superiority, genius or special talent, we feel pride in them, 
even if they have abjured the faith like Spinoza, Marx, Dis- 
raeli or Heine. Despite the meditations of pundits or the 
decrees of council, our own instincts and acts, and those of 
others, have defined for us the term Jew. 

JEWISH ATTRIBUTES 

[215] To take risks is the very essence of Jewish life, that 
is, to take necessary risks. The wise man seeks not to avoid 
but to minimize risks. He minimizes them by using judg- 
ment and by knowledge and by thinking. These are, fortu- 
nately, preeminently Jewish attributes. 

JEWISH FESTIVALS 

I do not believe that the manner in which some Jewish 
festivals are observed does full justice to the historic moments 
they celebrate or to the values they symbolize. When aging 
forms do hurt to content it is time to think of new form. A 
symbol should be transparent and not opaque and should 
speak eloquently and convincingly of the idea it represents. 

JEWISH HERITAGE 

It is not wealth, it is not station, it is not social standing 
and ambition which can make us worthy of the Jewish 
name, of the Jewish heritage. To be worthy of them, we 
must live up to and with them. We must regard ourselves as 



'Justice 'Brandeis -107 

their custodians. Every young man here must feel that he is 
the trustee of what is best in Jewish history. 31 

JEWISH INDIVIDUALITY 

We recognize that with each child the aim of education 
should be to develop his own individuality, not to make him 
an imitator, not to assimilate him to others. Shall we fail to 
recognize this truth when applied to whole peoples? And 
what people in the world has shown greater individuality 
than the Jews? Has any a nobler past? Does any possess 
common ideas better worth expressing? Has any marked 
traits worthier of development? Of all the peoples in the 
world those of two tiny states stand preeminent as contribu- 
tors to our present civilization, the Greeks and the Jews, The 
Jews gave to the world its three greatest religions, reverence 
for law, and the highest conceptions of morality. Never be- 
fore has the value of our contribution been so generally 
recognized. Our teaching of brotherhood and righteousness 
has, under the name of democracy and social justice, become 
the twentieth century striving of America and of western 
Europe. Our conception of law is embodied in the Ameri- 
can constitution which proclaims this to be a "government 
of laws and not of men." And for the triumph of our other 
great teaching, the doctrine of peace, this cruel war is paving 
the way. 32 

JEWISH INTELLECTUAL CAPACITY 

Our intellectual capacity was developed by the almost 
continuous training of the mind throughout twenty-five cen- 
turies. The Torah led the "People of the Book" to intellec- 
tual pursuits at times when most of the Aryan peoples were 
illiterate. Religion imposed the use of the mind upon the 
Jews, indirectly as well as directly. It demanded of the Jew 

31 Repeated under Trustee of History. 

32 See also Individuality of Peoples, Nationality. 



108* the words of 

not merely the love, but also the understanding of God. This 
necessarily involved a study of the Law. The conditions 
under which the Jews were compelled to live during the last 
two thousand years promoted study in a people among 
whom there was already considerable intellectual attain- 
ment. Throughout the centuries of persecution practically 
the only life open to the Jew which could give satisfaction 
was the intellectual and spiritual life. Other fields of activity 
and of distinction which divert men from intellectual pur- 
suits were closed to Jews. Thus they were protected by their 
privations from the temptations of material things and 
worldly ambitions. Driven by circumstances to intellectual 
pursuits their mental capacity gradually developed. And as 
men delight in that which they do well, there was an ever- 
widening appreciation of things intellectual. 

JEWISH "PECULIARITIES" 

[220] Common race is only one of the elements which 
determine nationality. Conscious community of sentiments, 
common experiences, common qualities are equally, perhaps 
more, important Religion, traditions and customs bound 
us together, though scattered throughout the world. The 
similarity of experience tended to produce similarity of qual- 
ities and community of sentiments. Common suffering so 
intensified the feeling of brotherhood as to overcome largely 
all the influences making for diversification. The segregation 
of the Jew was so general, so complete, and so long con- 
tinued as to intensify our "peculiarities" and make them 
almost ineradicable. 

JEWISH PEOPLE ITS PRESERVATION 

Throughout long years which represent my own life, I 
have been to a great extent separated from Jews. I am very 
ignorant in things Jewish. But recent experiences, public 
and professional, have taught me this: I find Jews possessed 



Justice ftrandeis 1 P 6 

of those very qualities which we of the twentieth century 
seek to develop in our struggle for justice and democracy; 
a deep moral feeling which makes them capable of noble 
acts; a deep sense of the brotherhood of man; and a high 
intelligence, the fruit of three thousand years of civilization. 
These experiences have made me feel that the Jewish 
people have something which should be saved for the world; 
that the Jewish people should be preserved; and that it is 
our duty to pursue that method of saving which most 
promises success. 

JEWISH PERSECUTION 

The suffering of the Jews due to injustices continuing 
throughout nearly twenty centuries is the greatest tragedy in 
history. Never was the aggregate of such suffering larger than 
today. Never were the injustices more glaring. 

* 

I suppose eighteen centuries of Jewish persecution must 
have enured me to such hardships and developed the like 
of a duck's back. 

J E WISH PROBLEM 

For us the Jewish Problem means this: How can we secure 
for Jews, wherever they may live, the same rights and oppor- 
tunities enjoyed by non-Jews? How can we secure for the 
world the full contribution which Jews can make, if unham- 
pered by artificial limitations? 

The problem has two aspects: That of the individual Jew, 
and that of Jews collectively. Obviously, no individual 
should be subjected anywhere, by reason of the fact that he 
is a Jew, to a denial of any common right or opportunity 
enjoyed by non-Jews. But Jews collectively should likewise 
enjoy the same right and opportunity to live and develop as 
do other groups of people. This right of development on the 
part of the group is essential to the full enjoyment of rights 



110* the words of 

by the individual. For the individual is dependent for his 
development (and his happiness) in large part upon the 
development of the group of which he forms a part. We 
can scarcely conceive of an individual German or French- 
man living and developing without some relation to the con- 
temporary German or French life and culture. And since 
death is not a solution of the problem of life, the solution 
of the Jewish Problem necessarily involves the continued 
existence of the Jews as Jews. 

JEWISH SPIRIT AND AMERICA 

[225] There is no inconsistency between loyalty to Amer- 
ica and loyalty to Jewry. The Jewish spirit, the product of 
our religion and experiences, is essentially modern and 
essentially American. Not since the destruction of the Tem- 
ple have the Jews in spirit and in ideals been so fully in 
harmony with the noblest aspirations of the country in 
which they lived. 

America's fundamental law seeks to make real the broth- 
erhood of man. 33 That brotherhood became the Jewish 
fundamental law more than twenty-five hundred years ago. 
America's insistent demand in the twentieth century is for 
social justice. 34 That also has been the Jews' striving for 
ages. Their affliction as well as their religion has prepared 
the Jews for effective democracy. Persecution broadened 
their sympathies. It trained them in patient endurance, in 
self-control, and in sacrifice. It made them think as well as 
suffer. It deepened the passion for righteousness. 

JEWISH SURVIVAL 

We have survived persecution because of the virtues and 
sacrifices of our ancestors. 

33 See America's Fundamental Law. 

34 See America's Insistent Demand. 



Justice 'Brandeis * a i 

JEWS AND DEMOCRACY 

Among the Jews democracy was not an ideal merely. It 
was a practice, a practice made possible by the existence 
among them of certain conditions essential to successful 
democracy, namely: 

First: An all-pervading sense of duty in the citizen. Demo- 
cratic ideals cannot be attained through emphasis merely 
upon the rights of man. Even a recognition that every right 
has a correlative duty will not meet the needs of democracy. 
Duty must be accepted as the dominant conception in life. 35 
Such were the conditions in the early days of the colonies 
and states of New England, when American democracy 
reached there its fullest expression; for the Puritans were 
trained in implicit obedience to stern duty by constant study 
of the Prophets. 36 

Second: Relatively high intellectual attainments. Demo- 
cratic ideals cannot be attained by the mentally undevel- 
oped. In a government where everyone is part sovereign, 
everyone should be competent, if not to govern, at least to 
understand the problems of government; and to this end 
education is an essential. 37 The early New Englanders ap- 
preciated fully that education is an essential of potential 
equality. The founding of their common school system was 
coincident with founding of the colonies; and even the 
establishment of institutions for higher education did not 
lag far behind. Harvard College was founded but six years 
after the first settlement of Boston. 38 

Third: Submission to leadership as distinguished from 
authority. Democratic ideals can be attained only where 
those who govern exercise their power not by alleged divine 
right or inheritance, but by force of character and intelli- 

35 See Duty. 

36 Repeated under Puritans. 

37 See Democratic Ideals. 

38 See Early New Englanders. 



H2 the words of 

gence. 39 Such a condition implies the attainment by citizens 
generally of relatively high moral and intellectual standards; 
and such a condition actually existed among the Jews. These 
men who were habitually denied rights, and whose province 
it has been for centuries "to suffer and to think/' learned 
not only to sympathize with their fellows (which is the 
essence of a democracy and social justice) , but also to accept 
voluntarily the leadership of those highly endowed, morally 
and intellectually. 

Fourth: A developed community sense. The sense of duty 
to which I have referred was particularly effective in pro- 
moting democratic ideals among the Jews, because of their 
deep-seated community feeling. To describe the Jew as an 
individualist is to state a most misleading half-truth. He has 
to a rare degree merged his individuality and his interests in 
the community of which he forms a part. This is evidenced 
among other things by his attitude toward immortality. 
Nearly every other people has reconciled this world of 
suffering with the idea of a beneficent Providence by con- 
ceiving of immortality for the individual. The individual 
sufferer bore present ills by regarding this world as merely 
the preparation for another, in which those living right- 
eously here would find individual reward hereafter. Of all 
nations, Israel "takes precedence in suffering"; but, despite 
our national tragedy, the doctrine of individual immortality 
found relatively slight lodgment among us. 4a 

JEWS TODAY 

I believe that the Jews can be just as much of a priest 
people today as they ever were in the prophetic days. 41 

S9 See Democratic Ideals, Character and Intelligence. 

40 See also Immortality of the Soul. 

41 See also Chosen People. 



Justice TSrandeis * i i 3 



JOINERS 42 



Multiplicity of pursuits is as great a curse as bigness. The 
greatest benefactors of the human race have not been they 
who attempted many things but they who did a few things 
well. The growing propensity of Americans to "join" is 
bound to result in indifference to all organizations and in 
organizational bureaucracies. 

JOSEPH 

[230] Our ancestor Joseph who realized that there were 
lean years as well as fat ones knew a thing or two. 

j UDGES 

I believe that our judges are as honest as you can make 
men. But like all the rest of us they are subject to their 
environment and law has always been a narrowing, con- 
servatizing profession. 43 In England it was always easy for 
a Tory government to find great lawyers for judicial office 
but for a liberal government it was hard. And so it has been 
throughout history. Nearly all of England's great lawyers 
were Tories. 



The judge came to the bench unequipped with the neces- 
sary knowledge of economic and social science,, and his 
judgments suffered likewise through lack of equipment in 
the lawyers who presented the cases to him. For a judge 
rarely performs his functions adequately unless the case 
before him is adequately presented. Thus were the blind 
led by the blind. It is not surprising that under such condi- 
tions the laws as administered failed to meet contemporary 
economic and social demands. 44 

42 See also Monopoly. 

43 Repeated under Law and Life. 

44 Repeated under Lawyers' Education. 



i i 4 the words of 

# 

What we must do in America is not to attack our judges, 
but to educate them. All judges should be made to feel, as 
many judges already do, that the things needed to protect 
liberty are radically different from what they were fifty years 
back. In some courts the judges' conceptions of their own 
powers must also change. Some judges have decided a law 
unconstitutional simply because they considered the law 
unwise. These judges should be made to feel that they have 
no such right, that their business is not to decide whether 
the view taken by the legislature is a wise view, but whether 
a body of men could reasonably hold such a view. In the past 
the courts have reached their conclusions largely deductively 
from preconceived notions and precedents. The method I 
have tried to employ in arguing cases before them has been 
inductive, reasoning from the facts. 45 

j USTICE 

Justice can be attained only by a careful regard for funda- 
mental facts, since justice is but truth in action. 



LABOR'S SHARE 46 



[235] We ought to make up for the opportunity we lost 
when we changed from hand labor to machine labor. I think 
it is perfectly clear that when that change was made the 
employer got more than he ought to have got; and labor 
did not get its share, because labor was not organized. Now, 
when labor is to a very considerable extent organized, labor 
ought to insist upon scientific management. It has a just 
cause of complaint if a business is not well managed. Then, 
when the proceeds of good management are secured, labor 
ought to insist upon getting its share; and, as I have said, I 
think its share ought to be large, because of the reason that 

45 See Facts. 

46 See also Human Truth, Responsibility, Scientific Management. 



Justice 'Brandeis -145 

when machines were introduced labor did not get its share, 

LAW AND LIFE 47 

The law has everywhere a tendency to lag behind the facts 
of life. 

* 

Law has always been a narrowing, conservatizing profes.- 
sion. 48 

# 

Modification implies growth. It is the life of the law. 

LAW AND PUBLIC OPINION 

Whether a law enacted in the exercise of the police power 
is just, subject to the charge of being unreasonable or arbi- 
trary can ^rdinarily be determined only by a consideration 
of the contemporary conditions, social, industrial, and 
political, of the community to be affected thereby. Resort 
to such facts is necessary, among other things, in order to 
appreciate the evils sought to be remedied and the possible 
effects of the remedy proposed. Nearly all legislation in- 
volves a weighing of public needs as against private desires, 
and likewise a weighing of relative social values. Since gov- 
ernment is not an exact science, prevailing public opinion 
concerning the evils and the remedy is among the important 
facts deserving consideration, particularly when the public 
conviction is both deep-seated and widespread and has been 
reached after deliberation. 

LAW AND THE WILL OF THE PEOPLE 

[240] Your former townsman, Charles R. Crane, told me 
once the story of two men whose lives he would have cared 
most to have lived. One was Bogigish, a native of the ancient 

47 See also Government Control, Living Law. 

48 See Judges. 



it 6 * the words of 

-city of Ragusa off the coast of Dalmatia a deep student of 
law, who after gaining some distinction at the University 
of Vienna and in France, became Professor at the Uni- 
versity of Odessa. When Montenegro was admitted to the 
family of nations, its Prince concluded that, like other civi- 
lized countries., it must have a code of law. Bogigish's fame 
had reached Montenegro, for Ragusa is but a few miles 
distant. So the Prince begged the Czar of Russia to have 
the learned jurist prepare a code for Montenegro. The Czar 
granted the request, and Bogigish undertook the task. But 
instead of utilizing his great knowledge of laws to draft a 
code, he proceeded to Montenegro, and for two years liter- 
.ally made his home with the people, studying everywhere 
their customs, their practices, their needs, their beliefs, their 
points of view. Then he embodied in law the life which the 
Montenegrins lived. They respected that law, because it ex- 
pressed the will of the people. 



No law can be effective which does not take into con- 
sideration the conditions of the community for which it is 
designed; no law can be a good lawevery law must be a 
bad law that remains unenf orced. 



No small part of the law's function is to make men good. 

LAWS MOT MEN 50 

The way to correct the evil of an unjust decision is not 
to evade the law but to amend it. The unions should take 
the position squarely that they are amenable to law, pre- 
pared to take the consequences if they transgress, and thus 
show that they are in full sympathy with the spirit of our 

49 See also Government Control. 

50 See also Unio&. 



Justice 'Brandeis 1 i 7 

people, whose political system rests upon the proposition 
that this is a government of law, and not of men. 

* 

Checks and balances were established in order that this 
should be "a government of laws and not of men." 

LAWYERS'* EDUCATION 

[245] The pursuit of the legal profession involves a happy 
combination of the intellectual with the practical life. The 
intellectual tends to breadth of view; the practical to that 
realization of limitations which are essential to the wise con- 
duct of life. Formerly the lawyer secured breadth of view 
largely through wide professional experience. Being a gen- 
eral practitioner, he was brought into contact with all phases 
of contemporary life. His education was not legal only, 
because his diversified clientage brought him, by the mere 
practice of his profession, an economic and social education. 
The relative smallness of the communities tended to make 
his practice diversified not only in the character of matters 
dealt with, but also in the character or standing of his 
clients. For the same lawyer was apt to serve at one time or 
another both rich and poor, both employer and employee. 
Furthermore, nearly every lawyer of ability took some part 
in political life. Our greatest judges, Marshall, Kent, Story, 
Shaw, had secured this training. . . . 

The last fifty years have brought a great change in pro- 
fessional life. Industrial development and the consequent 
growth of cities have led to a high degree of specialization 
specialization not only in the nature and class of questions 
dealt with, but also specialization in the character of client- 
age. The term "corporation lawyer" is significant in this 
connection. 51 The growing intensity of professional life 
tended also to discourage participation in public affairs, and 

51 See also Corporation Lawyer. 



118- the words of 

thus the broadening of view which comes from political life 
was lost. . . . 

The effect of this contraction of the lawyers' intimate rela- 
tion to contemporary life was doubly serious, because it 
came at a time when the rapidity of our economic and 
social transformation made accurate and broad knowledge 
of present-day problems essential to the administration of 
justice. 

The judge came to the bench unequipped with the neces- 
sary knowledge of economic and social science, and his judg- 
ment suffered likewise through lack of equipment in the 
lawyers who presented the cases to him. For a judge rarely 
performs his functions adequately unless the case before him 
is adequately presented. Thus were the blind led by the 
blind. It is not surprising that under such conditions the 
laws as administered failed to meet contemporary economic 
and social demands. . . , 52 

We are powerless to restore the general practitioner and 
general participation in public life. Intense specialization 
must continue. But we can correct its distorting effects by 
broader education by study undertaken preparatory to 
practiceand continued by lawyer and judge throughout 
life; study of economics and sociology and politics which 
embody the facts and present the problems of today. 

LAWYERS* KNOWLEDGE 

Knowledge of decisions and powers of logic are mere 
handmaidens they are servants, not masters. The control- 
ling force is the deep knowledge of human necessities. It 
was this which made Jessel the great lawyer and the greater 
judge. The man who does not know intimately human 
affairs is apt to make of the law a bed of Procrustes. No 
hermit can be a great lawyer, least of all a commercial 
lawyer. When from a knowledge of the law, you pass to its 

52 See Judges. ~~~ 



Justice T$ r a n d e i $ 1 19 

application, the need of a full knowledge of men and of 
their affairs becomes even more apparent The duty of a 
lawyer today is not that of a solver of legal conundrums; 
he is indeed a counsellor of law. Knowledge of the law is 
of course essential to his efficiency, but the law bears to his 
profession a relation very similar to that which medicine 
does to that of the physicians. The apothecary can prepare 
the dose, the more intelligent one even knows the specific 
for most common diseases. It requires but a mediocre physi- 
cian to administer the proper drug for the patient who 
correctly and fully describes his ailment. The great physi- 
cians are those who in addition to that knowledge of thera- 
peutics which is open to all, know not merely the human 
body but the human mind and emotions, so as to make 
themselves the proper diagnosis to know the truth which 
their patients fail to disclose and who add to this an influ- 
ence over the patient which is apt to spring from a real 
understanding of him. 53 

LAWYERS' OPPORTUNITY 

It is true that at the present time the lawyer does not hold 
that position with the people which he held fifty years ago; 
but the reason is in my opinion not lack of opportunity. It 
is because, instead of holding a position of independence 
between the wealthy and the people, prepared to curb the 
excesses of either, the able lawyers have to a great extent 
allowed themselves to become an adjunct of the great cor- 
porations, and have neglected their obligation to use their 
powers for the protection of the people. If we are to solve 
the important economic, social and industrial questions 
which have become political questions also, it seems to me 
clear that the attitude of the lawyer in this respect must 
be materially changed. . . . The great opportunity of the 

53 See Great Physicians. 



120- the words of 

American Bar is and will be to stand again as it did in the 
past, ready to protect also the interest of the people. 



The people are beginning to doubt whether in the long 
run democracy and absolutism can coexist in the same com- 
munity; beginning to doubt whether there is really a justifi- 
cation for the great inequalities in the distribution of wealth. 
This movement must necessarily progress; the people's 
thought will take shape in action. And it lies with our 
lawyers to say in what lines that action shall be expressed: 
wisely and temperately or wildly and intemperately; in lines 
of evolution or in lines of revolution. 

LAWYERS'* SPECIAL OBLIGATION 54 

We who are lawyers have a special obligation, and that 
is to make our law efficient. The disgrace that has come 
to the law, the discredit, the disrespect which has come to 
the law, is because it is inefficient, and because we make 
rules and we do not provide any machinery for enforcing 
them. 



LAWYERS' TRAINING 55 



[250] The whole training of the lawyer leads to the de- 
velopment of judgment. His early training his work with 
books in the study of legal rules teaches him patient re- 
search and develops both the memory and the reasoning 
faculties. He becomes practiced in logic; and yet the use of 
the reasoning faculties in the study of law is very different 
from their use, say, in metaphysics. The lawyer's processes 
of reasoning, his logical conclusions, are being constantly 
tested by experience. He is running up against facts at 
every point. Indeed it is a maxim of the law: Out of the facts 

54 See also Government Control. 

55 See also Facts. 



Justice 'Brandeis i 2 1 

grows the law; that is, propositions are not considered ab- 
stractly, but always with reference to facts. 

LEGAL PROFESSION 50 

Young men who feel drawn to the legal profession may 
rest assured that they will find in it an opportunity for use- 
fulness which is probably unequalled elsewhere. There is 
and there will be a call upon the legal profession to do a 
great work for this country. 

* 

Our country is, after all, not a country of dollars, but of 
ballots. The immense corporate wealth will necessarily 
develop a hostility from which much trouble will come to 
us unless the excesses of capital are curbed, through the 
respect for law, as the excesses of democracy were curbed 
seventy-five years ago. 57 There will come a revolt of the 
people against the capitalists, unless the aspirations of the 
people are given some adequate legal expression; and to this 
end cooperation of the abler lawyers is essential. 

LEGAL SCIENCE DEAF AND BLIND 

Political as well as economic and social science noted 
these revolutionary changes. But legal science the un- 
written or judge-made laws as distinguished from legislation 
was largely deaf and blind to them. Courts continued to 
ignore newly arisen social needs. They applied complacently 
eighteenth century conceptions of the liberty of the indi- 
vidual and of the sacredness of private property. Early nine- 
teenth century scientific half-truths, like "The survival of 
the fittest/' which translated into practice meant "The devil 
take the hindmost/' were erected by judicial sanction into 
a moral law. 

56 See also Corporation Lawyer. 

57 See Excesses of Capital. 



422- thewords'of 

LEISURE 58 

No people ever did or ever can attain a worthy civiliza- 
tion by the satisfaction merely of material needs, however 
high these needs are raised. The American standard of liv- 
ing demands not only a high minimum wage, but a high 
minimum of leisure, because we must meet also needs other 
than material ones. 

* 

[255] Serfdom, slavery, peonage, sweatshops held back 
progress for centuries. By bread alone or labor alone man 
can barely exist. To live and make life worth living he must 
have leisure to enjoy the fruits of his labor. 

* 

Leisure does not imply idleness. It means ability to work 
not less but more, ability to work at something besides 
breadwinning, ability to work harder while working at 
breadwinning, and ability to work more years at bread- 
winning. Leisure, so defined, is an essential of successful 
democracy. 

# 

The art of using leisure time, like any other, must be 
learned; but it is certain that the proper use of leisure, as of 
liberty, can never be attained except by those who have the 
opportunity of leisure or of liberty. 

* 

We need leisure, among other reasons, because with us 
every man is of the ruling class. Our education and condi- 
tion of life must be such as become a ruler. Our great 
beneficent experiment in democracy will fail unless the 
people, our rulers, are developed in character and intelli- 
gence. 59 

58 See also Short Workday. 
5S See Democratic Ideals. 



Justice TSrandeis * i 2 3 

LIBERALISM AND ANTI-JEWISH PREJUDICE 

Why is it that liberalism has failed to eliminate the anti- 
Jewish prejudice? It is because the liberal movement has 
not yet brought full liberty. Enlightened countries grant to 
the individual equality before the law; but they fail still to 
recognize the equality of whole peoples or nationalities. We 
seek to protect as individuals those constituting a minority; 
but we fail to realize that protection cannot be complete 
unless group equality also is recognized. 60 

LIBERATION OF SMALLER PEOPLES 

[260] The liberation of lesser nationalities is prominent 
among the hopeful results of the War. And yet their inde- 
pendence was won less by arms than the slow process of 
education. It was largely the work of far-seeing, patient, 
persistent devoted men and women, who awakened in the 
rising generation an interest in the language, the literature, 
the traditions of their people, and through the acquisition 
of knowledge, developed the striving for liberty and op- 
portunity and the fuller life. 

LIBERTY 61 

The history of Anglo-Saxon and of American liberty rests 
upon that struggle to resist wrong to resist it at any cost 
when first offered rather than to pay the penalty of ignomin- 
ious surrender. 

* 

The liberty of each individual must be limited in such a 
way that it leaves to others the possibility of individual 
liberty; the right to develop must be subject to that limita- 
tion which gives everybody else the right to develop; the 
restriction is merely an adjustment of the relations of one 
individual to another. 

60 See also Individuality of Peoples. 

61 See also Industrial Liberty. 



i 24 * the words of 

# 

I cannot believe that the liberty guaranteed by the 
Fourteenth Amendment includes only liberty to acquire 
and to enjoy property. 

* 

Liberty means exercising one's rights consistently with a 
like exercise of rights by other people; , . . liberty is dis- 
tinguished from license in that it is subject to certain re- 
strictions and that no one can expect to secure liberty in 
the sense in which we recognize it in America without 
having his rights curtailed in those respects in which it is 
necessary to limit them in the general public interest. 62 

* 

[265] Liberty has come to mean the right to enjoy life, to 
acquire property, to pursue happiness, in such manner that 
the exercise of the right in each is consistent with the exer- 
cise of a like right by every other of our fellow citizens. 
Liberty thus defined underlies twentieth century democracy. 
Liberty thus defined exists in a large part of the western 
world. And even where this equal right of all has not yet 
been accepted as a political right, its ethical value is becom- 
ing recognized. 63 

* 

Liberty is the greatest developer. Herodotus tells us that 
while the tyrants ruled, the Athenians were no better fighters 
than their neighbors; but when freed they immediately sur- 
passed all others. 64 



Liberty has knit us closely together as Americans. 65 

62 See Employers and Unions. 

63 See Individuality of Peoples. 

64 See Industrial Democracy. 

65 See E Pluribus Unum. 



Justice 'Brandeis 1 2 5 

LIBERTY'S GREATEST DANGER 

The greatest dangers to liberty lurk in insidious encroach- 
ment by men of zeal, well-meaning but without understand- 
ing. 66 

LIBERTY THROUGH LAW 

The great achievement of the English-speaking people is 
the attainment of liberty through law. 

LIB RARY 

[270] The library was to be not a static thing, but a 
dynamic force. 

LIQUOR 

The use of liquor is not a wrong. It is the abuse and no( 
the use which is wrong. . . . Remember the weaknesses oi: 
men and endeavor to protect them but do not forget that 
even the weak are strong enough to resist too severe restric- 
tions. Remember that any regulations which you may adopt 
will, at best, reduce the evil which is sure to flow from the: 
appetite of men for stimulating liquors. 

LIVING LAW 67 

The Struggle Continues. The court reawakened to the 
truth of the old maxim of the civilians, E% facto jus oritur. 
It realized that no law, written or unwritten, can be under- 
stood without a full knowledge of the facts out of which it 
is to be applied. But the struggle for the living law has not 
been fully won. 

LOGIC OF REALITIES 68 

The logic of words should yield to the logic of realities. 

66 See Government Intrusion. 

67 See also Law and Life. 

68 See also Facts. 



126* the words of 

LONG HOURS 69 

The first question in considering the condition of labor 
is, and to my mind must be, the hours of labor. No matter 
what men are paid, no matter what the ordinary conditions 
may be under which they work, the first question must be, 
How long did this man work? Because not only does the 
excess of hours of labor entail upon the individual very 
serious consequences in respect to health and the ability to 
endure labor in the future, but the effect upon the com- 
munity as a whole is of infinite importance; in the first 
place, in determining what is the time that is left to the 
individual to devote himself to the needs of his own family, 
to aid in the education and the bringing up of his children; 
and in the second place, what is the time that is left to the 
individual to perform those duties which are incumbent 
upon him as a citizen of a free country. 

* 

[275] The best of wages will not compensate for excess- 
ively long working hours which undermine health. 

* 

The effect of overwork on morals is closely related to the 
injury of health. Laxity of moral fibre follows physical de- 
bility. When the working day is so long that no time what- 
ever is left for a minimum of leisure or home life, relief 
from the strain of work is sought in alcoholic stimulants and 
other excesses, # 

The fatigue which follows long hours of labor becomes 
chronic and results in general deterioration of health. Often 
ignored, since it does not result in immediate disease, this 
weakness and anaemia undermines the whole system; it 
destroys the nervous energy most necessary for steady work, 
and effectually predisposes to other illness. The long hours 

69 See also Leisure, Short Workday. 



Justice 'Brandeis * 1 2 7 

of standing, which are required in many industries, are uni- 
versally denounced by physicians as the cause of pelvic 
disorders. 

LOW WAGES 

No proposition in economics is better established than 
that low wages are not cheap wages. On the contrary, the 
best in wages is the cheapest. . . . Why should the propo- 
sition be doubted, that wages insufficient to sustain the 
worker properly are uneconomical? Does anybody doubt 
that the only way you can get work out of a horse is to feed 
the horse properly? Does anyone doubt that the only way 
you can get hens to lay, is to feed the hens properly? Re- 
garding cows we know now that even proper feeding is not 
enough, or proper material living conditions. . . . Experi- 
ence has taught us that harsh language addressed to a cow 
impairs her usefulness. Are women less sensitive than beasts 
in these respects? 

LOYALTY 

The loyalty that you want is loyalty to the real employer, 
to the people of the United States. This idea that loyalty 
to an immediate superior is something commendable when 
it goes to a f orgetfulness of one's country involves a strange 
misconception of what democracy is. It is a revival a relic 
of the slave status, a relic of the time when "the king 
could do no wrong/' and when everybody owed allegiance 
to the king. 

WM . H . MCELWAIN 

[280] He worked for nobler ends than mere accumulation 
or lust of power. . . . McElwain made so many advances 
in the methods and practices of the long-established and 
prosperous branch of industry in which he was engaged, 
that he may be said to have revolutionized shoe manufac- 
turing. He found it a trade; he left it an applied science. 



428* the words of 

MACCABEAN STRUGGLE 

As a part of the eternal world-wide struggle for democ- 
racy, the struggle of the Maccabees is of eternal world-wide 
interest. It is a struggle of the Jews today, as well as those 
of 2,000 years ago. It is a struggle of America as well as of 
Palestine. It is a struggle in which all Americans, non-Jews 
as well as Jews, should be vitally interested because they 
are vitally affected. 

MACHINERY 

The great advance created by the introduction of ma- 
chinery we permitted, in large measure, to be dissipated 
socially instead of utilizing the opportunity fully to raise 
the standard of our civilization. 

MAIN FACTOR IN BETTERMENT 

Seek for betterment within the broad lines of existing 
institutions. Do so by attacking evil in situ; and proceed 
from the individual to the general. Remember that progress 
is necessarily slow; that remedies are necessarily tentative; 
that because of varying conditions there must be much and 
constant enquiry into facts . . . and much experimenta- 
tion; and that always and everywhere the intellectual, moral 
and spiritual development of those concerned will remain 
an essential and the main factor in real betterment. 7(> 

MAN 

Men are not bad, men are not degraded, because they 
desire to be so; they are degraded largely through circum- 
stances. 

[285] Man is weak and his judgment is at best fallible. 71 

70 See Existing Institutions. 

71 See Experimentation. 



Justice 'Brandeis * i 29 

* 
Man has not kept pace in growth with his works. 

MAN'S WORK 

Man's work is, at best, so insignificant compared with 
that of the Creator it is all so Lilliputian, one cannot bow 
before it. 72 

MASSACHUSETTS' TASK 

No one but a fanatic can be sure that his opinions- 
political, economic, or social are correct. But no man, be 
he reactionary or progressive, ought to doubt that free 
thought and free speech are necessary in a democracy; and 
that their exercise in things public should be encouraged. 
My opponents throughout long years practically refused to 
discuss publicly or privately with me the measures under 
consideration. For opposing arguments they substituted at- 
tacks upon reputation. And the community permitted them 
to do so almost without a protest. This seems to me the 
fundamental defect. Our task in Massachusetts is to recon- 
struct manhood. 

MESSIAH 

The belief in a Messiah and a Messianic Age is foreign 
to my way of thinking. My interests are the real, natural, 
and intelligible, and also the probable and possible. I hold 
it to be improbable and impossible that there will ever live 
a man who will possess all knowledge and be in a position 
to solve all of man's problems, or that there will come an 
age that will be altogether free from trouble and vexation. 
As to whether the belief in a Messiah has been helpful or 
harmful I cannot say. Certain socialist thinkers have main- 
tained that it has hindered progress. But I doubt it. No one 
has as yet proved satisfactorily whether the acceptance of 

72 See Character. 



130- the words of 

dogmas affects a man's conduct one way or another. My 
impression is that the faithful outnumber the virtuous and 
that not all the unbelieving are saints. 

MINIMUM WAGE 

[290] I am convinced that a minimum wage instead of 
adding to the expense of an establishment would, after the 
initial period of introduction, reduce the actual expenses 
of the establishment. Anything which is of better quality, 
which costs a little more, gives a larger percentage of value 
than the thing that is cheap. It is one of the curses of the 
poor that they have to buy poor things; and it is precisely 
the same in regard to human labor and human service as 
in regard to merchandise, 

MIRACLES 

There has been more nonsense written about miracles 
than almost about any other subject. On the whole I gather 
the impression that those who loudly protest their belief 
in miracles feel the need of reassuring themselves. 

MONEY 

The service of money will resemble that of water in agri- 
culture always indispensable, always beneficent to the point 
where it becomes excessive but of little avail unless the soil 
be rich, naturally or through fertilizers, unless there be 
appropriate cultivation, and unless the operations be con- 
ducted with good judgment, 

MONEY-MAKING AND SERVICE 

Think of the great work that has been done in the world 
by men who had no thought of money reward. No; money 
is not worth a great man's time. It is unworthy of greatness 
to strive for that alone. What then? Power? That isn't 
much better, if you mean the kind of power that springs 
from monev. Is it the game? You hear that nowadavs 



jfustice 'Brandeis * i 3 i 

the game! It sounds too frivolous. To me the word is Service. 
Money-making will become incidental to Service. The man 
of the future will think more of giving Service than of 
making money, no matter what particular kind of Service 
it happens to be. It will become a distinction worth striv- 
ing for to give the best Service, whether you are conducting 
a retail shop or a great railroad. It naturally follows that 
those who give the best Service will make money, because 
success must be profitable, yet Service, and not money- 
making, will be the end. Though the work of the greatest 
artists may command the highest prices, their incentive has 
not been money. It has been the desire to achieve profes- 
sional success. 73 That will be the spirit of business in the 
future. 74 

M N O P OL Y 7B 

There are still intelligent, informed, just-minded and 
civilized persons who believe that the rapidly growing aggre- 
gation of capital through corporations constitutes an insidi- 
ous menace to the liberty of the citizen; that it tends to 
increase the subjection of labor to capital; that, because of 
the guidance and control necessarily exercised by great cor- 
porations upon those engaged in business, individual initia- 
tive is being impaired and creative power will be lessened; 
that the absorption of capital by corporations, and their 
perpetual life, may bring evils similar to those which at- 
tended mortmain; that the evils incident to the accelerating 
absorption of business by corporations outweigh the benefits 
thereby secured; and that the process of absorption should 
be retarded. 

73 See Artists. 

74 See also Business A Profession. 

75 See also Absolute Power, Bankers' Ethics, Industrial Absolutism, 
Industrial Liberty, People's Own Gold, Regulated Competition, 
Sherman Law, Socialism. 



432- the words of 

# 

[295] The assertion that the great financial interests exer- 
cise a potent, subtle, and sinister influence in the important 
decisions of our Government had often been made by men 
high in authority. 

* 

The prevalence of the corporation in America has led men 
of this generation to act, at times, as if the privilege of doing 
business in corporate form were inherent in the citizen; 
and has led them to accept the evils attendant upon the 
free and unrestricted use of the corporate mechanism as if 
these evils were the inescapable price of civilized life, and, 
hence, to be borne with resignation. Throughout the greater 
part of our history a different view prevailed. 

* 

Size alone gives to giant corporations a social significance 
not attached ordinarily to smaller units of private enter- 
prise. Through size, corporations ... are sometimes able 
to dominate the state. The typical business corporation of 
the last century, owned by a small group of individuals, 
managed by their owners, and limited in size by their per- 
sonal wealth, is being supplanted by huge concerns in which 
the lives of tens or hundreds of thousands of investors are 
subjected, through the corporate mechanism, to the control 
of a few men. Ownership has been separated from control; 
and this separation has removed many of the checks which 
formerly operated to curb the misuse of wealth and power. 
And as ownership of the shares is becoming continually 
more dispersed, the power which formerly accompanied 
ownership is becoming increasingly concentrated in the 
hands of a few. The changes thereby wrought in the lives 
of the workers, of the owners, and of the general public, 
are so fundamental and far-reaching as to lead these scholars 
to compare the evolving "corporate system" with the feudal 



'Justice E r a n d e i s -133 

system; and to lead other men of insight and experience 
to assert that this "master institution of civilized life 7 ' is 
committing it to the rule of a plutocracy. 

* 

The statement that size is not a crime is entirely correct 
when you speak of it from the point of motive. But size may 
become such a danger in its results to the community that 
the community may have to set limits. A large part of our 
protective legislation consists of prohibiting things which 
we find are dangerous, according to common experience. 
Concentration of power has been shown to be dangerous 
in a democracy, even though that power may be used benef- 
icently. 76 

# 

The trust problem can never be settled right for the Amer- 
ican people by looking at it through the spectacles of bonds 
and stocks. You must study it through the spectacles of 
people's rights and people's interests; must consider the 
effect upon the development of the American democracy. 
When you do that you will realize the extraordinary perils 
to our institutions which attend the trusts; you will realize 
the danger of letting the people learn that our sacred Con- 
stitution protects not only vested rights but vested wrongs. 
The situation is a very serious one; unless wise legislation is 
enacted we shall have as a result of that social unrest, a 
condition which will be more serious than that produced 
by the fall of a few points in stock-exchange quotations. 

* 

[300] The first essential of wise and just action is knowl- 
edge. And as a means of obtaining this knowledge we should 
secure uniform account. It was, as I remember, the great 
Colbert who said, "Accountancy that is government/ 7 

76 See also Big Business, Bigness. 



134* the words of 

* 

Nobody can form a judgment that is worth having with- 
out a fairly detailed and intimate knowledge of the facts, 
and the circumstances of these gentlemen, largely bankers 
of importance, with a multitude of different associations 
and occupations the fact that those men cannot know the 
facts is conclusive to my mind against a system by which the 
same men are directors in many different companies. I 
doubt whether anybody who is himself engaged in any im- 
portant business has time to be a director in more than one 
large corporation. If he seeks to know about the affairs of 
that one corporation as much as he should know, not only 
in the interest of the stockholders, but in the interest of the 
community, he will have a field for study that will certainly 
occupy all the time that he has. 7T 

* 

My observation leads me to believe that while there are 
many contributing causes to unrest, there is one cause 
which is fundamental. That is the necessary conflict the 
contrast between our political liberty and our industrial ab- 
solutism. 78 We are as free politically, perhaps, as free as it is 
possible for us to be. Every male has his voice and vote; and 
the law has endeavored to enable, and has succeeded prac- 
tically, in enabling him to exercise his political franchise 
without fear. He therefore has his part; and certainly can 
secure an adequate part in the government of the country in 
all of its political relations; that is, in all relations which 
are determined directly by legislation or governmental ad- 
ministration. 

On the other hand, in dealing with industrial problems 
the position of the ordinary worker is exactly the reverse. 
The individual employee has no effective voice or vote. And 

See also Concentration, Interlocking Directorates, Joiners. 
178 Repeated under Unrest 



Justice "Brandeis * i 3 5 

the main objection, as I see it, to the very large corporation 
is, that it makes possible and in many cases makes inevita- 
blethe exercise of industrial absolutism. It is not merely 
the case of the individual worker against the employer 
which, even if he is a reasonably sized employer, presents a 
serious situation calling for the interposition of a union to 
protect the individual. But we have the situation of an em- 
ployer so potent, so well organized, with such concentrated 
forces and with such extraordinary powers of reserve and the 
ability to endure against strikes and other efforts of a union, 
that the relatively loosely organized masses of even strong 
unions are unable to cope with the situation. We are dealing 
here with a question, not of motive, but of condition. Now, 
the large corporations and the managers of the powerful 
corporations are probably in large part actuated by motives 
just the same as an employer of a tenth of their size. Neither 
of them, as a rule, wishes to have his liberty abridged; but 
the smaller concern usually comes to the conclusion that it 
is necessary that it should be, where an important union 
must be dealt with. But when a great financial power has 
developedwhen there exist these powerful organizations, 
which can successfully summon forces from all parts of the 
country, which can afford to use tremendous amounts of 
money in any conflict to carry out what they deem to be 
their business principle, and can also afford to suffer large 
losses you have necessarily a condition of inequality be- 
tween the two contending forces. Such contests, though 
undertaken with the best motives and with strong convic- 
tion on the part of the corporate managers that they are 
seeking what is for the best interests not only of the com- 
pany but of the community, lead to absolutism. The result, 
in the cases of these large corporations, may be to develop a 
benevolent absolutism, but it is an absolutism all the same; 
and it is that which makes the great corporation so danger- 
ous. There develops within the State a state so powerful that 



136* the words of 

the ordinary social and industrial forces existing are insuffi- 
cient to cope with it. 

* 

Many dangers to democracy ... are inherent in these 
huge aggregations. 79 

* 

All the power of capital and all the ability and intelligence 
of the men who wield and who serve the capital have been 
used to make practically slaves of these operatives, because it 
does not mean merely in respect to the way in which they 
have lived, but the very worst part of all this is the repres- 
sion. It is a condition of repression, of slavery in the real 
sense of the word, which is alien to American conditions. 

* 

[305] More serious ... is the effect of the Money Trust 
in directly suppressing competition. That suppression ena- 
bles the monopolist to extort excessive profits; but monop- 
oly increases the burden of the consumer even more in other 
ways. Monopoly arrests development; and through arresting 
development, prevents that lessening of the cost of pro- 
duction and of distribution which would otherwise take 
place. . . . 

But far more serious even than the suppression of compe- 
tition is the suppression of industrial liberty, indeed of 
manhood itself, which this overweening financial power en- 
tails. The intimidation which it effects extends far beyond 
"the banks, trust companies, and other institutions seeking 
participation from this inner group in their lucrative under- 
writings"; and far beyond those interested in the great cor- 
porations directly dependent upon the inner group. Its 
blighting and benumbing effect extends as well to the small 
and seemingly independent business man, to the vast army 

TO See Dangers to Democracy, 



justice 'Brandeis 1 3 7 

of professional men and others directly dependent upon 
"Big Business/ 7 and to many another. 

* 

The talk of the agitator alone does not advance socialism 
a step; but the formation of great trusts the huge railroad 
consolidations the insurance "racers" with the attendant 
rapacity or the dishonesty of their potent managers, and 
their frequent corruption of councils and legislatures is 
hastening us almost irresistibly into socialistic measures. The 
great captains of industry and of finance, who profess the 
greatest horror of the extension of governmental functions, 
are the chief makers of socialism. Socialistic thinkers smile 
approvingly at the operations of Morgan, Perkins and Rocke- 
feller, and of the Hydes, McCalls and McCurdys. They 
see approaching the glad day when monopoly shall have 
brought all industry and finance under a single head, so that 
with the cutting of a single neck, as Nero vainly wished for 
his Christian subjects, destruction of the enemy may be 
accomplished. Our great trust-building, trust-abusing capi- 
talists have in their selfish shortsightedness become the 
makers of socialism, proclaiming by their acts, like the 
nobles of France, "After us, The Deluge!" 80 

* 

It has been suggested that we accept the proposed mo- 
nopoly in transportation but provide safeguards. 

This would be like surrendering liberty and substituting 
despotism with safeguards. There is no way in which to 
safeguard people from despotism except to prevent despot- 
ism. 81 There is no way to safeguard the people from the 
evils of a private transportation monopoly except to prevent 
the monopoly. The objections to despotism and to monop- 
oly are fundamental in human nature. They rest upon the 

80 Repeated under Socialism. 

81 See Despotism. 



138* the words of 

innate and ineradicable selfishness of man. They rest upon 
the fact that absolute power inevitably leads to abuse. They 
rest upon the fact that progress flows only from struggle. 82 

* 

We have got to encourage in every way the individual 
enterprise, and we have to bear in mind that on the one 
hand while you are encouraging the enterprise and making 
for the advance of the country and the prosperity of the 
individual, the inventor, and the business man; on the other 
hand, the moment you get these large organizations, these 
large trusts, you are doing exactly the opposite; you are put- 
ting an actual damper upon advance. 

* 

Human nature is such that monopolies, however well in- 
tentioned and however well regulated, inevitably become 
oppressive, arbitrary, unprogressive and inefficient. 83 

# 

[510] We have no place in the American democracy for 
the money king, not even for the merchant prince. We are 
confronted in the twentieth century, as we were in the nine- 
teenth century, with an irreconcilable conflict. Our democ- 
racy cannot endure half free and half slave. The essence of 
the trust is a combination of the capitalist, by the capital- 
ist, for the capitalist. 84 

# 

The American people have as little need of oligarchy in 
business as in politics. 

* 

We must break the Money Trust or the Money Trust 
will break us. 

82 Repeated under Progress. 

83 See Human Nature. 

8 * See Half Free and Half Slave. 



Justice Vrandeis -439 

MONOPOLY AND EFFICIENCY 

Whenever trusts have developed efficiency, their fruits 
have been absorbed almost wholly by the trusts themselves. 
From such efficiency as they have developed, the com- 
munity has gained substantially nothing. 

* 

It is true that the unit in business may be too small to be 
efficient. It is also true that the unit may be too large to be 
efficient, and this is no uncommon incident of monopoly. 85 

MOTIVES AND RESULTS 

[315] In things economic and social, wrong results do not 
proceed to any very great extent from wrong motives. The 
motives are, in the main, right meaning by "motives," in- 
tent. But the results sought are very often wrong. People 
fail to recognize true values. It is failure to recognize things 
at their real worth which leads to unfortunate results. 

NATIONAL INDIVIDUALITY 

The movements of the last century have proved that 
whole peoples have individuality no less marked than that 
of the single person; that the individuality of a people is 
irrepressible, and that the misnamed internationalism which 
seeks the obliteration of nationalities or peoples is unattain- 
able. 8541 The new nationalism adopted by America proclaims 
that each race or people, like each individual, has the right 
and duty to develop, and that only through such differen- 
tiated development will high civilization be attained. Not 
until these principles of nationalism, like those of democ- 
racy, are generally accepted will liberty be fully attained and 
minorities be secure in their rights. Not until then can the 
foundation be laid for a lasting peace among the nations. 

85 See also Efficiency. 

ssa See also Individuality of Peoples, Jewish Individuality. 



1 40 the words of 

NATIONALITY 

Deeply imbedded in every people is the desire for full de- 
velopment, the longing, as Mazzini phrased it, "to elaborate 
and express their idea, to contribute their stone also to the 
pyramid of history." Nationality like democracy has been 
one of the potent forces making for man's advance during 
the past hundred years. The assertion of nationality has in- 
fused whole peoples with hope, manhood and self-respect. 
It has ennobled and made purposeful millions of lives. It 
offered them a future, and in doing so revived and capital- 
ized all that was valuable in their past. The assertion of 
nationality raised Ireland from the slough of despondency. 
It roused Southern Slavs to heroic deeds. It created gallant 
Belgium. It freed Greece. It gave us united Italy. It mani- 
fested itself even among the free peoples, like the Welsh, 
who had no grievance, but who gave expression to their na- 
tionality through the revival of the old Cymric tongue. Each 
of these peoples developed because, as Mazzini said, they 
were enabled to proclaim "to the world that they also live, 
think, love, and labor for the benefit of all." 86 

NATION AND NATIONALITY 

The difference between a nation and a nationality is clear; 
but it is not always observed. Likeness between members is 
the essence of nationality; but the members of a nation may 
be very different. A nation may be composed of many na- 
tionalities, as some of the most successful nations are. An 
instance of this is the British nation, with its division into 
English, Scotch, Welsh, and Irish at home; with the French 
in Canada; and throughout the Empire, scores of other 
nationalities. Other examples are furnished by the Swiss 
nation with its German, French, and Italian sections; by the 
Belgian nation composed of Flemings and Walloons; and 
by the American nation which comprises nearly all the 

86 See also Individuality of Peoples, Jewish Individuality. 



Justice Ttrandeis 1 4 1 

white nationalities. The unity of a nationality is a fact of 
nature; the unification into a nation is largely the work of 
man. The false doctrine that nation and nationality must 
be made coextensive is the cause of some of our greatest 
tragedies. It is, in large part, the cause also of the present 
war. 87 It has led, on the one hand, to cruel, futile attempts 
at enforced assimilation, like the Russianizing of Finland 
and Poland, and the Prussianizing of Posen, Schleswig-Hol- 
stein, and Alsace-Lorraine. It has led, on the other hand, to 
those Panistic movements which are a cloak for territorial 
ambitions. As a nation may develop though composed of 
many nationalities, so a nationality may develop though 
forming parts of several nations. The essential in either case 
is recognition of the equal rights of each nationality. 

NATURE OF LAW 

Few laws are of universal application. It is the nature of 
our law that it has dealt, not with man in general, but with 
him in relationship. 

NEUTRALITY 

[ 320] Neutrality is at times a graver sin than belligerence. 88 

NEW DEMANDS FOR JUSTICE 

The great development of agencies now furnishing coun- 
try-wide distribution of news, the vastness of our territory, 
and improvements in the means of transmitting intelli- 
gence, have made it possible for a news agency or newspa- 
pers to obtain, without paying compensation, the fruit of 
another's efforts and to use news so obtained gainfully in 
competition with the original collector. The injustice of 
such action is obvious. But to give relief against it would 
involve more than the application of existing rules of law to 
new facts. It would require the making of a new rule in anal- 

87 World War I. 

88 See Chosen People. 



142* the words of 

ogy to existing ones. The unwritten law possesses capacity 
for growth; and has often satisfied new demands for justice 
by invoking analogies or by expanding a rule or principle. 
This process has been in the main wisely applied and should 
not be discontinued. Where the problem is relatively sim- 
ple, as it is apt to be when private interests only are involved, 
it generally proves adequate. But with the increasing com- 
plexity of society, the public interest tends to become omni- 
present; and the problems presented by new demands for 
justice cease to be simple. Then the creation or recognition 
by courts of a new private right may work serious injury to 
the general public; unless the boundaries of the right are 
definitely established and wisely guarded. In order to recon- 
cile the new private right with the public interest, it may be 
necessary to prescribe limitations and rules for its enjoy- 
ment; and also to provide administrative machinery for en- 
forcing the rules. It is largely for this reason that, in the 
effort to meet the many new demands for justice incident 
to a rapidly changing civilization, resort to legislation has 
latterly been had with increasing frequency. 

NEW FREEDOM 

Break the control . . . exercised by the investment bank- 
ers over railroads, public-service, and industrial corporations, 
over banks, life insurance and trust companies, and a long 
step will have been taken toward attainment of the New 
Freedom. 89 # 

Give men a free field. Provide equality of opportunity and 
we attain the New Freedom, 90 

NOBLESSE OBLIGE 

We have also an immediate and more pressing duty in the 
performance of which Zionism alone seems capable of af- 

89 See Interlocking Directorates. 

90 See Equality of Opportunity. 



Justice 'Brandeis i 43 

fording effective aid. We must protect America and our- 
selves from demoralization, which has to some extent al- 
ready set in among American Jews. The cause of this demor- 
alization is clear. It results in large part from the fact that in 
our land of liberty all the restraints by which the Jews were 
protected in their Ghettos were removed and a new genera- 
tion left without necessary moral and spiritual support. And 
is it not equally clear what the only possible remedy is? It is 
the laborious task of inculcating self-respect, a task which 
can be accomplished only by restoring the ties of the Jew 
to the noble past of his race, and by making him realize the 
possibilities of a no less glorious future. The sole bulwark 
against demoralization is to develop in each new generation 
of Jews in America the sense of noblesse oblige. That spirit 
can be developed in those who regard their people as des- 
tined to live and to live with a bright future. That spirit can 
best be developed by actively participating in some way in 
furthering the ideals of the Jewish renaissance; and this 
can be done effectively only through furthering the Zionist 
movement* 1 

ONE LIFE TO LIVE 

[325] I have only one life to live and it's short enough. 
Why waste it on things that I don't want most? And I don't 
want money or property most. I want to be free. 

ONE MASTER ONLY 

There is great strength in serving with singleness of pur- 
pose one master only. 

OPEN OPPORTUNITY 

What America needs is not that we do anything for these, 
our fellow citizens, but that we keep open the path of 
opportunity to enable them to do for themselves. 

S1 See also American Jewish Community, Zionism. 



144* t b e words of 

ORGANIZATION 

Man's work often outruns the capacity of the individual 
man; and no matter how good the organization, the capacity 
of an individual man usually determines the success or fail- 
ure of a particular enterprise not only financially to the 
owners but in service to the community. Organization can 
do much to make concerns more efficient. Organization can 
do much to make larger units possible and profitable. But 
the efficacy even of organization has its bounds. There is a 
point where the centrifugal force necessarily exceeds the cen- 
tripetal. And organization can never supply the combined 
judgment, initiative, enterprise and authority which must 
come from the chief executive officer. Nature sets a limit to 
his possible achievement. 92 

* 

Organization can never be a substitute for initiative and 
for judgment. 93 

OUR NEW PEONAGE 

[330] Half a century ago nearly every American boy could 
look forward to becoming independent as a farmer or me- 
chanic, in business or in professional life; and nearly every 
American girl might expect to become the wife of such a 
man. Today most American boys have reason to believe 
that throughout life they will work in some capacity as 
employees of others, either in private or public business; and 
a large percentage of the women occupy like positions. This 
revolutionary change has resulted from the growth of manu- 
facturing and mining as compared with farming; from the 
formation of trusts and other large business corporations; 
from the marked increase in governmental functions; and 
finally, from the invasion of women into industry. 

92 See also Bigness. 

9S See Capacity of Individual Man. 



'Justice TSrandeis 1 4 5 

PALES TI NE 

The land is an inspiration to effort. It is an inspiration not 
only because of its past and its associations, but because the 
present urges one on to make it bloom againbloom, not 
only physically, but spiritually. 

PARAMOUNT PUBLIC NEED 

What, at any particular time, is the paramount public 
need is, necessarily, largely a matter of judgment. Hence, in 
passing upon the validity of a law challenged as being unrea- 
sonable, aid may be derived from the experience of other 
countries and of the several states of our Union in which 
the common law and its conceptions of liberty and of prop- 
erty prevail. 

PARENTAGE 

The greatest combination of good fortune any man can 
have is a parentage unusual for both brains and character. 

PAST 
The past is valuable as the mirror of the future. 

PAST LOSSES 

[335] Past losses obviously do not tend to prove present 
values. The fact that a sometime losing business becomes 
profitable eventually through growth of the community or 
more efficient management, tends to prove merely that the 
adventure was not wholly misconceived. 

PATH TO BANKRUPTCY 

The manufacturer who fails to recognize fire insurance, 
depreciation, interest and taxes as current charges of the 
business treads the path to bankruptcy. And that nation 
does the like which fails to recognize and provide against the 
economic, social and political conditions which impose 



1 4 6 * the words of 

upon the workingman so large a degree of financial de- 
pendence. 

PEOPLE AND RAW MATERIAL 

When we come to think about it hard, and really try, how 
much more rapidly we shall be able to produce results with 
people than from any other form of raw material. All the 
raw material from which man produces his mechanical mir- 
acles is inert. But the people, as raw material, can help. They 
have will. 

PEOPLE AND RICH 

Every act of injustice on the part of the rich will be met 
by another act or many acts of injustice on the part of the 
people. 94 

PEOPLE'S OWN GOLD 

The goose that lays golden eggs has been considered a 
most valuable possession. But even more profitable is the 
privilege of taking the golden eggs laid by somebody else's 
goose. The investment bankers and their associates now 
enjoy that privilege. They control the people through the 
people's own money. If the bankers' power were commensu- 
rate only with their wealth, they would have relatively little 
influence on American business. Vast fortunes like those of 
the Astors are no doubt regrettable. They are inconsistent 
with democracy. They are unsocial. And they seem pecul- 
iarly unjust when they represent largely unearned increment. 
But the wealth of the Astors does not endanger political or 
industrial liberty. It is insignificant in amount as compared 
with the aggregate wealth of America, or even of New York 
City. It lacks significance largely because its owners have 
only the income from their own wealth. The Astor wealth is 
static. The wealth of the Morgan associates is dynamic. The 
power and the growth of power of our financial oligarchs 

94 See Excesses of Capital. 



Justice 'Brandeis * i 47 

comes from wielding the savings and quick capital of others. 
In two of the three great life insurance companies the influ- 
ence of J. P. Morgan & Co. and their associates is exerted^ 
without any individual investment by them whatsoever.* 
Even in the Equitable, where Mr. Morgan bought an actual 
majority of all the outstanding stock, his investment amounts 
to little more than one-half of one per cent, of the assets of 
the company. The fetters which bind the people are forged 
from the people's own gold. 95 

POLITICIAN 

[340] The politician can stand any amount of attack, but 
he cannot stand the opposition of public opinion. We can- 
not submit to the dishonor of being represented by those 
men. We should not allow ourselves to be represented by 
thieves and convicts. 

POPULAR OPINION 

My early associations were such as to give me greater rev- 
erence than I now have for the things that are because they 
are. I recall that when I began to practice law I thought it 
awkward, stupid, and vulgar that a jury of twelve inexpert 
men should have the power to decide. I had the greatest 
respect for the Judge. I trusted only expert opinion. Experi- 
ence of life has made me democratic. I began to see that 
many things sanctioned by expert opinion and denounced 
by popular opinion were wrong. 

POSSIBILITIES OF HUMAN DEVELOPMENT 

I believe that the possibilities of human advancement are 
unlimited. I believe that the resources of productive enter- 
prise are almost untouched, and that the world will see a 
vastly increased supply of comforts, a tremendous social sur- 
plus out of which the great masses will be apportioned a 
degree of well-being that is now hardly dreamed of. 

95 See also Banker-Middleman, Monopoly. 



448* the words of 

PRACTICAL MEN 

Theoreticians are signposts, but the distances between 
them are often best transversed by practical men. 

PREPAREDNESS 

"Preparedness" implies far more than adequate military 
equipment and training. It implies conservation and devel- 
opment of all the resources of the nation, human and mate- 
rial. It implies that in industry and in agriculture there will 
be constant effort to improve the methods and means of 
production and distribution. It implies that men and women 
will be trained for the vocations they are to pursue, and that 
opportunity shall exist to make their labor effective. It im- 
plies that conditions of living, as of work, shall be such that 
every American citizen may, throughout life, be fit to per- 
form the duties of citizenship, and that he may, by partici- 
pation in its privileges, learn to understand American ideals 
and become eager to cooperate for their attainment. 

PRICE CONTROL 

[345] The denial of the right to establish standard prices 
results in granting a privilege to the big concerns; a discrimi- 
nation in favor of the rich and powerful as against the small 
man; for the concern with large capital, as the powerful 
trusts, can secure adherence to the standard price while the 
small manufacturer or producer can not. The small man 
needs the protection of the law; but the law becomes the 
instrument by which he is destroyed. 

PRIVATE CITIZEN 

The most important office and the one which all of us can 
and should fill is that of private citizen. The duties of the 
office of private citizen cannot under a republican f orm of 
government be neglected without serious injury to the 
public. 



Justice Krandeis * i49 

PRODUCTION 

It is one of the greatest economic errors to put any limi- 
tation upon production. 

PRODUCTS OF THE MIND 

The fact that a product of the mind has cost its producer 
money and labor, and has a value for which others are will- 
ing to pay, is not sufficient to ensure to it this legal attribute 
of property. The general rule of law is, that the noblest of 
human productions knowledge, truths ascertained, concep- 
tions, and ideas become, after voluntary communication to 
others, free as the air to common use. Upon these incor- 
poreal productions the attribute of property is continued 
after such communication only in certain classes of cases 
where public policy has seemed to demand it. These excep- 
tions are confined to productions which, in some degree, in- 
volve creation, invention, or discovery. But by no means all 
such are endowed with this attribute of property. 

PROFIT SHARING 

To a greater or less extent in small business the owners 
are beginning to recognize that there is but one principle by 
which lasting success can be attained, and it is this: Those 
who do the work shall get in some fair proportion what they 
produce. The share to which capital as such is entitled is 
small. All the rest should go to those, high and low, who do 
the work. 

PROGRESS 

[350] Progress flows only from struggle. 96 

PROPER CONFERENCES 

Nine-tenths of the serious controversies which arise in life 
result from misunderstanding, result from one man not 
knowing the facts which to the other man seem important, 

96 See Monopoly. 



150- the words of 

or otherwise failing to appreciate his point of view. A prop- 
erly conducted conference involves a frank disclosure of 
such facts patient, careful argument, willingness to listen 
and to consider. 97 

Bluff and bluster have no place there. The spirit must be, 
"Come, let us reason together." Such a conference is impos- 
sible where the employer clings to the archaic belief com- 
monly expressed in the words, "This is my business, and I 
will run it as I please/ 7 It is impossible where the labor rep- 
resentative, swaggering in his power to inflict injury by strike 
and boycott, is seeking an unfair advantage of the employ- 
ers, or would seek to maintain even a proper position by 
improper means. Such conferences will succeed only if em- 
ployer and employee recognize that, even if v there be no 
so-called system of profit-sharing, they are in a most impor- 
tant sense partners, and that each is entitled to a patient 
hearing, with a mind as open as the prejudice of self-interest 
permits. 98 

PROPERTY 

Property must be subject to that control of property 
which is essential to the enjoyment by every man of a free 
individual life. And when property is used to interfere with 
that fundamental freedom of life for which property is only 
a means, then property must be controlled. This applies to 
the regulation of trusts and railroads, public utilities and all 
the big industries that control the necessities of life. Laws 
regulating them, far from being infringements on liberty, are 
in reality protections against infringements on liberty. 

* 

Property is only a means. It has been a frequent error of 
our courts that they have made the means an end. Once 
correct that error, put property back into its right place, 

97 Repeated under Employer and Employee, Serious Controversies. 

98 See Employer and Employee. 



'Justice 'Brandeis * i 5 1 

and the whole social-legal conception becomes at once con- 
sistent. 

PROPRIETY 

To publish of a modest and retiring individual that he 
suffers from an impediment in his speech or that he cannot 
spell correctly, is an unwarranted, if not an unexampled, in- 
fringement of his rights, while to state and comment on 
the same characteristics found in a would-be congressman 
could not be regarded as beyond the pale of propriety. 9 * 

PUBLIC INTERESTS 

[355] Private interests will always be and should properly 
be active in presenting to legislators what they deem to be 
required for the protection of the enterprises they represent. 
But it is essential to just and safe legislation that the inter- 
ests of the public should also be specifically and ably repre- 
sented. 

PUBLICITY 

Publicity is justly commended as a remedy for social and 
industrial diseases. Sunlight is said to be the best of disin- 
fectants; electric light the most efficient policeman. 

PUBLIC OPINION 

We need intelligent public opinion. I don't mean the 
periodic, spasmodic indignation at wrong. That won't give 
us good government. It is necessary to force the people to 
think of this corruption and the great need of action for the 
public good. 

PUBLIC SERVICE 

Some men buy diamonds and rare works of art. Others 
delight in autos and yachts. My luxury is to invest my sur- 
plus effort, beyond that required for the proper support of 

m See also Blighting Influence of Journalistic Gossip. 



i 5 2 the words of 

my family, to the pleasure of taking up a public problem and 
solving, or helping to solve, it for the people without receiv- 
ing any compensation. Your yachtsman or automobilist 
would lose much of his enjoyment if he were obliged to do 
for pay what he is doing for the love of the thing itself. So I 
should lose much of my satisfaction if I were paid in connec- 
tion with public services of this kind. 

PUNCTUALITY 

Generally speaking I should say that a human being who 
cannot organize himself so as to keep his appointments on 
time is an unorganized human being. And I do not believe 
that anybody or anything is at his best when in a state of 
disorganization. People think that poets and philosophers 
are notoriously absent-minded, forgetful, and disarranged. 
Well they may be absent-minded and forgetful, but not dis- 
arranged. There is a pattern of organization in Dante's 
Divine Comedy and Kant's Critique of Pure Reason which 
any construction engineer might envy and emulate. 

PURITANS 

[360] Democratic ideals cannot be attained through em- 
phasis merely upon the rights of man. Even a recognition 
that every right has a correlative duty will not meet the 
needs of democracy. Duty must be accepted as the domi- 
nant conception in life. Such were the conditions in the 
early days of the Colonies and states of New England, when 
American democracy reached there its fullest expression; for 
the Puritans were trained in implicit obedience to stern duty 
by constant study of the Prophets. 1 

QUALITY AND SPIRITUAL VALUE 

The growth of the future at least of the immediate fu- 
turemust be in quality and spiritual value. 2 

1 See Jews and Democracy. 

2 Repeated under Small Groups. 



Justice 'Brandeis * 4 5 3 

RADICALS AND CONSERVATIVES 

Radicals who would take us back to the roots of things 
often fail because they disregard the fruit Time has pro- 
duced and preserved. Conservatives fail because they would 
preserve even what Time has decomposed. 

RATE- MAKING 

The expense and loss now incident to recurrent rate con- 
troversies is also very large. The most serious vice of the 
present rule for fixing the rate base is not the existing uncer- 
tainty; but that the method does not lead -to certainty. Un- 
der it, the value for rate-making purposes must ever be an 
unstable factor. Instability is a standing menace of renewed 
controversy. The direct expense to the utility of maintaining 
an army of experts and of counsel is appalling. The indirect 
cost is far greater. The attention of officials high and low is, 
necessarily, diverted from the constructive tasks of efficient 
operation and of development. The public relations of the 
utility to the community are apt to become more and more 
strained. And a victory for the utility may, in the end, prove 
more disastrous than defeat would have been. The com- 
munity defeated, but unconvinced, remembers; and may 
refuse aid when the company has occasion later to require 
its consent or cooperation in the conduct and development 
of its enterprise. Controversy with utilities is obviously in- 
jurious also to the public interest. The prime needs of the 
community are that facilities be ample and that rates be as 
low and as stable as possible. The community can get cheap 
service from private companies only through cheap capital. 
It can get efficient service only if managers of the utility are 
free to devote themselves to problems of operation and of 
development. It can get ample service through private com- 
panies only if investors may be assured of receiving continu- 
ously a fair return upon the investment. 



READING 

Remember that even if you are able to read a good booi 
and understand it, even this is not all; you must think of it 
after you have ceased reading, and not allow your mind to 
be immediately taken up by your own little petty affairs the 
moment you set the book aside. To profit by what you read 
not only concentration of mind is necessary whilst reading 
but after thought. 

REGULATED COMPETITION 

[ 365] Shall we abandon as obsolete the long-cherished pol- 
icy of competition, and accept in its place the long-detested 
policy of monopoly? The issue is not (as it is usually stated 
by advocates of monopoly), "Shall we have unrestricted 
competition or regulated monopoly?" It is "Shall we have 
regulated competition or regulated monopoly?'' 

Regulation is essential to the preservation and develop- 
ment of competition, just as it is necessary to the preserva- 
tion and best development of liberty. We have long curbed 
the physically strong, to protect those physically weaker. 
More recently we have extended such prohibitions to busi- 
ness. We have restricted theoretical freedom of contract by 
factory laws. The liberty of the merchant and manufacturer 
to lie in trade, expressed in the fine phrase of caveat emptor, 
is yielding to the better conceptions of business ethics, be- 
fore pure-food laws and postal-fraud prosecutions. Similarly, 
the right to competition must be limited in order to pre- 
serve it. For excesses of competition lead to monopoly, as 
excesses of liberty lead to absolutism. The extremes meet. 3 

The issue, therefore, is: Regulated competition versus reg- 
ulated monopoly. The policy of regulated competition is 
distinctly a constructive policy. It is the policy of develop- 

3 See Excesses. 



Justice T$ r a n d e i s * 1 5 5 

merit as distinguished from the destructive policy of private 
monopoly. 4 

REGULATION 

The policy of regulating public-service companies is 
sound, but it must not be overworked. The scope of any 
possible effective regulation of an interstate railroad, either 
by Federal or by State commissions, is limited to a relatively 
narrow sphere. Regulation may prevent positive abuses, like 
discriminations, or excessive rates. Regulation may prevent 
persistent disregard of definite public demands, like that for 
specific trains or for stops at certain stations. Regulation 
may compel the correction of definite evils, like the use of 
unsanitary cars. But regulation cannot make inefficient busi- 
ness efficient. Regulation cannot convert a poorly managed 
railroad into a well-managed railroad. Regulation cannot 
supply initiative or energy. Regulation cannot infuse into 
railroad executives the will to please the people. Regulation 
cannot overcome the anaemia or wasting-sickness which at- 
tends monopoly. Regulation may curb, but it cannot de- 
velop the action of railroad officials. 

REMEDIAL INSTITUTIONS 

Refuse to accept as inevitable any evil in business (i.e. 9 
irregularity of employment) . Refuse to tolerate any immoral 
practice (e.g., espionage). But do not believe that you can 
find a universal remedy for evil conditions or immoral prac- 
tices in effecting a fundamental change in society (as by 
State Socialism) . 5 And do not pin too much faith in legisla- 
tion. Remedial institutions are apt to fall under the control 
of the enemy and to become instruments of oppression. 6 

4 See also Competition, Monopoly. 
6 Repeated under Socialism. 
6 See also Socialism. 



156* the words of 

RESETTLEMENT OF PALESTINE 

Palestine is being resettled by Jews. The resettlement has 
been largely the result of deliberate plans carried out through 
collective action. Men have differed concerning the wisdom 
of the Zionist movement. Men differ still in their predictions 
as to its results. But there is substantial agreement, among 
Jews and among non-Jews, that the resettlement is an event 
of historic significance. To students of history the subject is 
one of special interest because of the nature of the problem 
and the means employed. 

RESPONSIBILITY 

The great developer is responsibility. Hence no remedy 
can be hopeful which does not devolve upon the workers 
participation in responsibility for the conduct of business; 
and their aim should be the eventual assumption of full 
responsibilityas in cooperative enterprises. This participa- 
tion in and eventual control of industry is likewise an essen- 
tial of obtaining justice in distributing the fruits of indus- 
by.' 

RESURRECTION 

[370] Resurrection is a dogma, if it is that, that I should 
rather not discuss. I know how we love our precious little 
body, how much attentions some bestow upon it, and how 
loath we are to part from it, if part we do. I am not un- 
acquainted with the weakness of man and his conceitedness, 
and I can understand that in the infancy of the race he was 
impelled to mistake death for a long sleep. But that human 
beings should be under the illusion to this day attests both 
the deep darkness in the human mind and the failure of edu- 
cation and science. Of all the crude beliefs which we inher- 
ited from the past I regard this one as the least worthy of 
the Jewish people. There is no reason why a Jew who be- 

7 See also Labor's Share. 



justice ~B r a n d e i s -457 

lieves in the resurrection of the dead should not also 
believe in devils and angels, and in magic and astrology 
as well. 



REVELATION 



I have never been able to find out what the theologians 
mean by revelation. The Biblical account of what happened 
on Mount Sinai I think I understand, for it is simple, naive, 
anthropomorphic, and primitive. In that account the dis- 
tance between man and God vanishes. Moses and God are 
in close proximity. They are both on the top of the moun- 
tain, speak to each other, and together speak to the people. 
God's voice is quite naturally the stronger, more like a peal 
of thunder than a human voice, so much so that it terrifies 
the people. 

But God speaks with a voice. And a voice implies organs 
producing it. That is, something material and tangible as is 
an image or a picture. True, in later ages, when the effort 
was made to establish the incorporeality of God as a dogma, 
Jews were urged to remember that they saw no picture at 
Sinai and had heard only a voice speaking from the midst of 
a fire. This, to my mind, means only that in those ages men 
were in a quandary. On the one hand they insisted that God 
was immaterial and on the other that He had communi- 
cated with man or could do so at His will. To extricate 
themselves from embarrassment various compromises were 
attempted. At first, man's sense of hearing was favored over 
against his sense of seeing, the act of hearing having been 
apparently regarded as supersensual, as was the act of speak- 
ing. Later "hearing" was replaced by thinking and feeling 
as induced by emanations from God. 

I have not read much of the literature that I understand 
is extant on emanation or emanations. But from the little 
that I did read and from what I have gathered in conversa- 
tion I am satisfied that the theologians have not been sue- 



158- the words of 

cessful in bridging the gap between the insubstantial and 
the substantial. Nor, does it seem to me, have they gotten 
anywhere with their attempts to explain "thinking and feel- 
ing" as nonmaterial functions. If the body and brain do not 
do the thinking and feeling then I do not know what does. 

The account of revelation on Sinai makes more sense. It 
is more "factual/' That is, it records without sophistication 
what the people actually believed. It made God human. It 
located Him on a mountain and made Him speak and write, 
all as it did in the case of Moses. This is quite clear to me, 
and this is quite obviously a folktale as are many other 
Biblical accounts. 

The theologians would get farther with most thinking 
men by acknowledging that these folktales are a strain on 
their faith than by rationalizing them into incomprehensi- 
bility. 

Yes, I heard of "continued revelation." But what does it 
mean? Isn't it another attempt to conceal embarrassments? 
The theologian finds it extremely difficult to explain why 
God should have spoken to a few generations of men and 
then have stopped, particularly so since they cannot agree 
among themselves as to whom He spoke and what it was He 
really said. So they take their chance with continued revela- 
tion. But if God speaks today to all men as He did three 
thousand years ago to Moses then His speaking to Moses 
ceases to be unique or of any particular significance, and, it 
would seem to me, can no longer be set down as an article 
of faith. 

I am impressed with the fact that the burden and con- 
tent of the old revelations were legal codes. It proves that 
ancient man understood that but for law human society 
could not endure. But these legal codes certainly constitute 
no proof of revelation. In the first place, they suffer from 
very serious imperfections, from the imperfections to which 
all human efforts are subject. In the second place, the pro- 



Justice 'Brandeis -159 

ponents of continued revelation are horrified at the sugges- 
tion that the Mesopotamian codes were revealed. 

REVOLUTIONARY CHANGE 

Revolutionary change in industrial control and manage- 
ment should be voluntary, not compulsory. 

RIGHT TO PRIVACY 

The protection of society must come mainly through a 
recognition of the rights of the individual. Each man is re- 
sponsible for his own acts and omissions only. If he con- 
dones what he reprobates, with a weapon at hand equal to 
his defense, he is responsible for the results. If he resists, 
public opinion will rally to his support. Has he then such a 
weapon? It is believed that the common law provides him 
with one, forged in the slow fire of the centuries, and today 
fitly tempered to his hand. The common law has always 
recognized a man's house as his castle, impregnable, often 
even to its own officers engaged in the execution of its com- 
mands. Shall the courts thus close the front entrance to 
constituted authority, and open wide the back door to idle 
or prurient curiosity? 8 

RISKS 

To take risks is the very essence of Jewish life, that is, to 
take necessary risks. The wise man seeks not to avoid but 
to minimize risks. 

THEODORE ROOSEVELT AND WOODROW WILSON 

[375] President [Theodore] Roosevelt spoke forcefully and 
persuasively on liberal issues. President Wilson spoke logi- 
cally and convincingly, 

RULE OF LAW 

It is usually more important that a rule of law be settled, 
than that it be settled right. Even where the error in declar- 

8 See also Blighting Influence of Journalistic Gossip 



i 5 o the words of 

ing the rule is a matter of serious concern, it is ordinarily 
better to seek correction by legislation. 

SABBATH 

In the home of my parents there was no Jewish Sabbath, 
nor in my own home. But I recall vividly the joy and awe 
with which my uncle, Lewis Dembitz, welcomed the arrival 
of the day and the piety with which he observed it. I remem- 
ber the extra delicacies, lighting of the candles, prayers over 
a cup of wine ? quaint chants, and Uncle Lewis poring over 
books most of the day. I remember more particularly an 
elusive something about him which was spoken of as the 
"Sabbath peace" and which years later brought to my mind 
a passage from Addison in which he speaks of stealing a day 
out of life to live. That elusive something prevailed in many 
a home in Boston on a Sunday and was not wanting at Har- 
vard on the same day. Uncle Lewis used to say that he was 
enjoying a foretaste of heaven. I used to think, and do so 
now, that we need on earth the Jewish-Puritan Sabbath 
without its oppressive restrictions. 

SAVINGS BANK INSURANCE 

What we want is to have the workingman free; not to 
have him the beneficiary of a benevolent employer, and 
freedom demands a development in the employees of that 
self-control which results in thrift and in adequate provision 
for the future. The development of our savings banks and 
savings bank insurance will be effective in this direction. 

SCIENTIFIC MANAGEMENT 8 

We hear a great deal about inequality in the distribution 
of wealth or the profits of industry. Such inequality exists, 
but it is clear that even if there were a perfectly fair distribu- 
tion, our ideals could not be attained unless we succeeded 
in greatly increasing the productivity of man. Perhaps the 

9 See also Efficiency. 



Justice 'B r a n d e i s i 6 t 

greatest evil attendant upon this existing inequality is that 
it tends to discontent, which in turn discourages effort and 
therefore impairs productivity. Such progress as we have 
made in improving the condition of the workingmen during 
the last century, and particularly during the last fifty years, 
has been made possible by invention, by the introduction 
of machinery, through which the productivity of the indi- 
vidual man has been greatly increased. The misfortune is 
that when this method of increasing the productivity of man 
was introduced, labor did not get the share of the increased 
profit to which it was entitled. With the advent of the new 
science of management has come the next great opportunity 
for labor; and it seems to me of the utmost importance, not 
only that this science should be developed and should be 
applied as far as possible, but that it should be applied in 
cooperation with the representatives of organized labor, in 
order that labor may through this movement get its proper 
share in the proceeds of industry. 

I take it that this science of management is nothing more 
than an organized effort, pursued intensively, to eliminate 
waste. The efficiency experts tell us how this may be done. 
The experts make the individual detailed study, which is an 
essential of the elimination of waste. But, after all, the fun- 
damental problems are social and industrial. You cannot 
eliminate waste unless you secure the cooperation of the 
worker, and you cannot secure his cooperation unless he is 
satisfied that there is a fair distribution of profits. 10 



[380] Scientific management is merely an application to 
business of those methods which have been pursued in other 
branches of science, to discover the best and the most effec- 
tive methods of accomplishing a result. Scientific manage- 
ment does not mean making men work harder. Its every 

10 See also Labor's Share. 



i 62 the words of 

effort is to make them work less hard; to accomplish more 
by the same amount of effort, and to eliminate all unneces- 
sary motions; to educate them so as to make them more 
effective; to give special assistance to those who when enter- 
ing upon their work are most in need of assistance, because 
they are least competent. 

* 

The great fact to remember is this. The coming science of 
management, in this century, marks an advance comparable 
only to that made by the coming of the machine in the last. 
The profits from the machine were absorbed by capital. But 
we have developed a social sense. And now of the profits 
that are to come from the new scientific management, the 
people are to have their share. These profits are to be im- 
mense. On our railroads alone at least a million dollars a day 
might be saved by this kind of management. Not all the 
material resources in our land can compare to this prodi- 
gious field, the possibilities of the science which will increase 
the efficiency of man. And this public domain must not be 
preempted. 11 

SCIENTISTS AND THEOLOGIANS 

The fellow scientist of a Newton has, as a rule, advanced 
his findings. But theologians have altogether too often con- 
fused and mystified the revelations of the great religious 
teachers, and consequently retarded the good that those 
revelations aimed to achieve. 

SECURITIES 

Among the most important facts to be learned for deter- 
mining the real value of a security is the amount of water 
it contains. And any excessive amount paid to the banker 
for marketing a security is water. 

11 See also Efficiency. 



Justice "Brandeis i 63 

SEPARATION OF GOVERNMENTAL POWERS 

The development of our financial oligarchy followed, in 
this respect, lines with which the history of political despot- 
ism has familiarized us: usurpation, proceeding by gradual 
encroachment rather than by violent acts; subtle and often 
long-concealed concentration of distinct functions, which 
are beneficent when separately administered, and dangerous 
only when combined in the same persons. It was by proc- 
esses such as these that Caesar Augustus became master of 
Rome. The makers of our own Constitution had in mind 
like dangers to our political liberty when they provided so 
carefully for the separation of governmental powers. 

SERIOUS CONTROVERSIES 

[385] Nine-tenths of the serious controversies which arise 
in life result from misunderstanding, result from one man 
not knowing the facts which to the other man seem impor- 
tant, or otherwise failing to appreciate his point of view. A 
properly conducted conference involves a frank disclosure of 
such facts patient, careful argument, willingness to listen 
and to consider. 12 

SERVICE VS. CHARITY 

The greatest happiness in life is not to donate but to serve. 

SHERMAN LAW 

The moment that you endeavor by a combination of 
superior power to close the field to competition or to re- 
strict individual effort; the moment you take away from the 
people that protection which comes from the incentive in 
the individual to create, and from the opportunity of the 
customer to discriminate in his purchases (as you do when 
you close the avenues of competition) then a grave dan- 
ger arises to progress in industry and to the general welfare;; 

12 See Employer and Employee, Proper Conferences. 



1 64 the words of 

and it is against such danger that the Sherman Law was 
appropriately directed. ... It seeks to protect the small 
man against the powerful trust, against the capitalistic com- 
bination. 

The Sherman Law seeks to protect men in the right freely 
to compete and to prevent practices which must result in 
suppressing competition. It seeks to preserve to the indi- 
vidual both the opportunity and the incentive to create, it 
seeks to encourage individual effort; and a right in the indi- 
vidual manufacturer of a competitive business to market his 
goods in his own way, by fixing, if he desires, the selling- 
price to the consumer, is in entire harmony with the under- 
lying purposes of the Sherman Law. But when men combine 
to form a monopoly, or control a particular line or branch 
of trade, however good may be their intentions, they neces- 
sarily curb individual effort. Under the fundamental laws of 
human nature and of trade they withdraw incentive from 
those who enjoy the monopoly, and they narrow the field 
of human effort by confining leadership to a comparatively 
few individuals. 

And even where a complete monopoly does not exist, a 
powerful combination makes it so difficult for others to 
enter the field that most men are practically barred by the 
great chances of failure from entering upon so unequal a 
contest. It is against such conditions that the Sherman Law 
was directed. That is, the true restraint of trade restraint 
through monopoly or combinations tending to monopoly, a 
condition under which business success is at best tempo- 
rary, is often delusive, and is always purchased at the expense 
of the community. 13 

SHORT CUTS 

There are no short cuts in evolution. 

13 See also Competition, Monopoly. 



Justice 'Brandeis l 65 

SHORT WORKDAY 14 

History, which has illustrated the deterioration due to 
long hours, bears witness no less clearly to the regeneration 
due to the shorter working day. To the individual and to 
society alike, shorter hours have been a benefit wherever 
introduced. The married and unmarried working woman is 
enabled to obtain the decencies of life outside of working 
hours. With the improvement in home life, the tone of the 
entire community is raised. 15 Wherever sufficient time has 
elapsed since the establishment of the shorter working day, 
the succeeding generation has shown extraordinary improve- 
ment in physique and morals. 

* 

[390] The regulation of the working day has acted as a 
stimulus to improvement in the processes of manufacture. 
Invention of new machinery and perfection of old methods 
have followed the introduction of shorter hours. 



To the preservation of freshness of mind a short workday 
is as essential as adequate food and proper conditions of 
working and of living. The worker must, in other words, 
have leisure. 

SINFUL WASTE 

Irregularity of employment creates hardships and demor- 
alization of every kind. It is the most sinful waste. 16 

SKILLED AND UNSKILLED LABOR 

It has been clearly demonstrated, I think, by those who 
have studied the possible efficiencies and economies in labor, 
that the distinction between skilled and unskilled is wholly 

14 See also Leisure, Long Hours. 

15 See Home Life. 

16 See Irregularity of Employment. 



166* the words of 

unscientific and unphilosopliicaL There certainly is nothing 
that could be deemed to be nearer an unskilled occupation 
than lifting a pig of iron from the yard and putting it into a 
car; and yet it has been demonstrated by a study of that par- 
ticular operation that it was possible with the same amount 
of exertion., or less, to produce four times the former results 
by knowing how to do it, by selecting the proper man to do 
it, by teaching him how to do it, and particularly by teach- 
ing him how to rest when he was not actually under load. 
Now, what is true of the loading of pig iron has been shown 
to be true of other occupations which are constantly called 
unskilled, such as the mere shoveling of coal or the mere 
shoveling of dirt. You could pass through the whole realm 
of human, manual occupation and find that the difference 
between the man who is skilled and the man who is un- 
skilled is not in the occupation but is in the man and in the 
training of men. And in the same way the performance will 
be largely dependent not only upon skill but upon the physi- 
cal and mental condition of the individual. 

SMALL GROUPS 

The great America for which we long is unattainable un- 
less the individuality of communities becomes far more 
highly developed and becomes a common American phe- 
nomenon. For a century our growth has come through natu- 
ral expansion and the increase of the functions of the fed- 
eral government. The growth of the future at least of the 
immediate futuremust be in quality and spiritual value. 11 
And that can come only through the concentrated, intensi- 
fied strivings of smaller groups. 

SMALL STOCKHOLDERS 

[ 395] Numerous small stockholding creates in the corpora- 
tion a condition of irresponsible absentee landlordism; that 

17 See Quality and Spiritual Value. 



Justice "Brandeis l 67 

is, the numerous small stockholders in the steel corporation, 
in the tobacco company, and in the other trusts occupy a 
position which is dangerous to society. They have a certain 
degree of wealth without responsibility. Their only desire is 
dividends. Their demand upon the managers is at most to 
maintain or increase the dividends. They have no power or 
responsibility; they have no relations to the employees; they 
are remote, often thousands of miles from the people who 
are toiling for them. Thus we have reproduced in industry 
the precise conditions which brought all the misery upon 
Ireland and upon other countries where absentee landlord- 
ism has prevailed. Large dividends are the bribes which the 
managers tender the small investor for the power to use 
other people's money. 

SOCIAL INVENTIONS 

The reason why we have not made more progress in social 
matters is that these problems have not been tackled by the 
practical men of high ability, like those who have worked on 
industrial inventions and enterprises. We need social inven- 
tions, each of many able men adding his work until the in- 
vention is perfected. 

SOCIALISM 

The talk of the agitator alone does not advance socialism 
a step; but the formation of great truststhe huge railroad 
consolidations the insurance "racers" with the attendant 
rapacity or the dishonesty of their potent managers, and 
their frequent corruption of councils and legislatures is 
hastening us almost irresistibly into socialistic measures. The 
great captains of industry and of finance, who profess the 
greatest horror of the extension of governmental functions, 
.are the chief makers of socialism. Socialistic thinkers smile 
approvingly at the operations of Morgan, Perkins and Rocke- 
feller, and of the Hydes, McCalls and McCurdys. They see 



468* the words of 

approaching the glad day when monopoly shall have brought 
all industry and finance under a single head, so that with the 
cutting of a single neck, as Nero vainly wished for his Chris- 
tian subjects, destruction of the enemy may be accom- 
plished. Our great trust-building, trust-abusing capitalists 
have in their selfish shortsightedness become the makers of 
socialism, proclaiming by their acts, like the nobles of 
France, "After us, The Deluge!" 18 

* 

Do not believe that you can find a universal remedy for 
evil conditions or immoral practices in effecting a funda- 
mental change in society (as by State Socialism). 19 

SOCIAL PROBLEMS AND SCIENTIFIC 
INVENTIONS 

When men begin to think as hard, as intensely, about 
their social problems as they have thought about automo- 
biles, aeroplanes, and wireless telegraphy, nothing will be 
socially impossible. Many things which have seemed inevi- 
table will be seen to have been quite unnecessary. 

SOLVING THE JEWISH PROBLEM 

[400] The Jews are a people of thinkers; and they have a 
passion for freedom. If we acquiesce in decisions made for 
us and not by us, it can only be because we are practically 
indifferent; because we do not care, or at all events, do not 
care enough to assert our views, we certainly shall not care 
enough to make the sacrifices necessarily involved in saving 
our brethren, and solving the problem of the Jewish people. 

SOUNDNESS OF JUDGMENT 

Soundness of judgment is easily obscured by self-interest. 

18 See also Monopoly, Remedial Institutions. 

19 See Remedial Institutions. 



Justice "Brandeis i 69 

SPECIALIZATION 

The more complex life becomes the more we shall have 
to depend on the specialist. The day when any one human 
being could claim to be master of all knowledge is long past. 
Any field of learning is by now probably coextensive with 
that of all the humanities together of two or three hundred 
years ago. Today Dr. Einstein presumably knows as little 
about law as does Professor Roscoe Pound about nuclear 
physics. But since, in order to solve our problems, we must 
understand both the nature of law and the universe, the 
Einsteins and the Pounds must understand each other. But 
how is that to be accomplished? I believe there is only one 
way of doing it, and that is, postponing the age at which a 
student is permitted to begin working seriously on his own 
specialty. I would require of everyone who wished to pursue 
any one of the professions, arts, or sciences, an eight year 
college course, which would familiarize him with the major 
outlines of civilization, so that the specialties not his own 
might not be altogether alien to him. The span of life is in- 
creasing, and an additional four years of preparation should 
not be regarded as too great a sacrifice. 

STRIKES 

Labor cannot on any terms surrender the right to strike. 
In last resort, it is its sole effective means of protest. The old 
common law, which assures the employer the right to dis- 
charge and the employee the right to quit work, for any 
reason or for no reason in either case, is a necessary guaranty 
of "industrial liberty. 20 

STRUGGLE 

Struggle ... is a law of life. Must we not fight, all of us, 
even for the peace that we most crave? 

20 See also Unions. 



170** the words of 

SUCCESS BUILT ON FAILURE 

[405] We are prone to think of America as the home of 
good investments. But nobody who has looked into Ameri- 
can industrial and financial development can fail to know 
that, with the exception perhaps of the automobile and a 
few other recent industries, there has been hardly a single 
field of great business success in the United States, which 
does not rest on a foundation of failures. Almost every enter- 
prise in the United States, with the exception of the Great 
Northern, is built upon a failure. The Atchison, Topeka, 
Santa Fe, and the Northern Pacific are outstanding in- 
stances of successful American railroads. But despite the 
rich land grants made by the government, both the Atchi- 
son and the Northern Pacific went through two receiver- 
ships. Stockholders and bondholders who lacked faith to 
pay burdensome assessments, or were unable to do so, lost 
all or much of what they personally had invested. This is 
true also of the original investors in the heavily subsidized 
Union Pacific. Most of America's 250,000 miles of railroad 
have a similar history. But they were great factors in our 
prosperity. When we think now of American successes, we 
think not of our beginnings but of the flowers in full bloom. 

SUPPLY AND DEMAND 

Of course, there isn't any such thing as a law of supply 
and demand as an inexorable rule. It is an economic tend- 
ency, a highly important one, and one of the most impor- 
tant of the economic forces; but all the time we see that 
there are conditions under which the law of supply and 
demand does not work. 

TEACHERS 

Teachers are largely a meek, downtrodden, unappreci- 
ated body of men. To know that others believe in them, 
consider them capable of high thinking and doing, and are 



Justice T$ r a n d e i s i? i 

willing to help them out -may enable them to accomplish 
more than even they think possible. 



TESTING A FACT 



No statement of facts, however honest your people may 
be, can be relied upon until it has been subjected to the 
careful study and criticism of people who have a different 
point of view. 



THINKING 

Thinking is not a heaven-born thing . . . intelligence is 
not a gift that merely comes. It is a gift men make and 
women make for themselves. It is earned, and it is earned 
by effort There is no effort, to my mind, that is comparable 
in its qualities, that is so taxing to the individual, as to 
think, to analyze fundamentally. 21 

* 
[410] To think hard and persistently is painful. 22 

TRANSPORTATION 

Transportation is one of the privileges which places the 
greatest restraint in favor of a few upon a large number of 
the American business men. It has been said sometimes that 
you cannot follow up any industrial monopoly today with- 
out finding that some unjust and preferential transporta- 
tion privilege accounts in large measure for the power pos- 
sessed. . . . 

Privilege, preference, discrimination in favor of very large 
and powerful interests in the transportation field have been 
the main causes of the overweening growth of a few con- 
cerns as compared with the more struggling growth of many 
others. 

21 See Industrial Democracy and Thinking. 

22 See Human Nature. 



172- the words of 

TRIAL AND ERROR 

The discoveries in physical science, the triumphs of in- 
vention, attest the value of the process of trial and error. 23 

TRIVIALITY 

Triviality destroys at once robustness of thought and deli- 
cacy of feeling. No enthusiasm can flourish, no generous 
impulse can survive under its blighting influence. 24 

TRUSTEE OF HISTORY 

It is not wealth, it is not station, it is not social standing 
and ambition, which can make us worthy of the Jewish 
name, of the Jewish heritage. To be worthy of them, we 
must live up to and with them. We must regard ourselves 
as their custodians. Every young man here must feel that he 
is the trustee of what is best in Jewish history. 25 

UNCHARTED SEAS 

[415] The economic and social sciences are largely un- 
charted seas. 26 

UNEMPLOYMENT 

Unemployment perhaps the gravest and most difficult 
problem of modern industry. 



Unemployment is as unnecessary as disease epidemics. 
One who says in this intelligent age that unemployment is 
necessary or unavoidable is like one a generation ago who 
would have continued to insist that epidemics were, if not 
necessary and divinely imposed, at least inevitable. 

23 See Experimentation. 

24 See Blighting Influence of Journalistic Gossip. 

25 See Jewish Heritage. 
56 See Experimentation. 



Justice ftrandeis 1 7 3 

UNIONISM 

The essence of unionism is collective bargaining; that is, 
instead of the employer dealing individually with each em- 
ployee, he deals with a large body through their representa- 
tives, in respect to the rate of wages and the hours and 
conditions of employment. 

UNION LEADERS 

Abuses of the trade unions have been innumerable. Indi- 
viduals of slight education, of slight training, are elevated 
many times by shallow popularity to positions which can 
be filled adequately only by men possessing great minds and 
great characters. No wonder, then, that these leaders make 
mistakes; make grievous errors. The extraordinary thing is 
that they have not made more mistakes. It is one of the 
most promising symptoms in American democracy that 
with all the difficulties attending such positions the labor 
leaders on the whole have done so little that is wrong. 

UNIONS 21 

[420] The employer needs the unions "to stay him from 
the fall of vanity"; the employees need them for their own 
protection; the community needs them to raise the level of 
the citizen. 



The [Unions] have been largely instrumental in securing 
reasonable hours of labor and proper conditions of work; 
in raising materially the scale of wages, and in protect- 
ing women and children from industrial oppression. 

The trade unions have done this, not for the workingmen 
alone, but for all of us; since the conditions under which so 
large a part of our fellow citizens work and live will deter- 

2T See also Employer and Employee, Employers and Unions, Strikes, 
Unrest. 



i 74 * tbe words of 

mine, in great measure, the future of our country for good 
or for evil. 

* 

One reason why the trades union had to come into exist- 
ence was because the law of supply and demand did not 
work properly between the opposing forces of the powerful 
employer and the individual worker. 

* 

Strong, responsible unions are essential to industrial fair 
play. Without them the labor bargain is wholly one-sided. 
The parties to the labor contract must be nearly equal in 
strength if justice is to be worked out, and this means that 
the workers must be organized and that their organizations 
must be recognized by employers as a condition precedent 
to industrial peace. 

# 

Nearly every American who is not himself financially in- 
terested in a particular controversy sympathizes thoroughly 
with every struggle of the workingmen to better their own 
condition. But this sympathy for the workingmen is quickly 
forfeited whenever the conduct of the strikers is unreason- 
able, arbitrary, lawless or unjust. The American people with 
their common sense, their desire for fair play and their re- 
spect for law, resent such conduct. The growth and success 
of labor unions, therefore, as well as their usefulness to the 
community at large, would be much advanced by any meas- 
ures which tend to make them more deliberate, less arbi- 
trary, and more patient with the trammels of a civilized 
community. 28 

* 

[42 5] A bad act is no worse, as it is no better, because it has 
been done by a labor union and not by a partnership or a 

28 See also Strikes. 



Justice ftrandeis - i 75 

business corporation. If unions are lawless, restrain and pun- 
ish their lawlessness; if they are arbitrary, repress their arbi- 
trariness; if their demands are unreasonable or unjust, resist 
them; but do not oppose unions as such. 

* 

Nearly every large strike is attended by acts of flagrant 
lawlessness. The employers, and a large part of the public, 
charge these acts to the unions. In very many instances the 
unions are entirely innocent. Hoodlums, or habitual crimi- 
nals, have merely availed themselves of a convenient oppor- 
tunity for breaking the law, in some instances even incited 
thereto by employers desiring to turn public opinion against 
the strikers. What an immense gain would come to the 
unions from a full and fair trial of such charges if the inno- 
cence of the unions were established, and perhaps even the 
guilt of an employer! And such a trial would almost neces- 
sarily be had before a jury, upon oral testimony, with full 
opportunity of cross-examination; whereas now, nearly every 
important adjudication involving the alleged action of 
unions is made upon application to a judge sitting alone, 
and upon written affidavits, without the opportunity of 
cross-examination. 29 

UNITED STATES STEEL CORPORATION 

While this corporation is the greatest example of com- 
bination, the most conspicuous instance of combination of 
capital in the world, it has, as an incident of the power 
which it acquires through that combination and through its 
associations with railroads and the financial world, under- 
taken, and undertaken successfully, to deny the right of 
combination to the workingmen, and these horrible condi- 
tions of labor, which are a disgrace to America, considering 
the wealth which has surrounded and flown out of the in- 

29 See also Laws not Men, Strikes. 



176- the words of 

dustry, are the result of having killed or eliminated from the 
steel industry unionism. All the power of capital and all the 
ability and intelligence of the men who wield and who serve 
the capital have been used to make practically slaves of 
these operatives, because it does not mean merely in respect 
to the way in which they have lived, but the very worst part 
of all this is the repression. It is a condition of repression, 
of slavery in the real sense of the word, which is alien to 
American conditions. 30 

* 

It is a life so inhuman as to make our former Negro slav- 
ery infinitely preferable, for the master owned the slave, and 
tried to keep his property in working order for his own in- 
terest. The Steel Trust, on the other hand, looks on its slaves 
as something to be worked out and thrown aside. The result 
is physical and moral degeneracy work, work, work, with- 
out recreation or any possibility of relief save that which 
dissipation brings. The men coming out of these steel mills 
move on pay day straight to the barroom. Think what such 
- men transmit as a physical and moral heritage to their chil- 
dren and think of our American citizenship for men who 
live under such conditions. 

There is only one explanation. This great corporation, 
which exemplifies the power of combination, and in connec- 
tion with which combination has been justified, has made it 
its first business to prevent combination among its em- 
ployees when they sought to procure decent working condi- 
tions and living conditions. It stamped out, through its im- 
mense powers of endurance, one strike after another. It 
developed a secret service, a system of espionage among its 
workmen, singling out individuals who favor unionism- and 
anyone fomenting dissatisfaction with existing conditions, 
as it was called, was quietly discharged. The trust is but- 

3(> Thanks to the work of Mr. Brandeis, conditions in the steel in- 
dustry are considerably different from what they were in 1912. 



Tus'tice'Brandeis -477 

tressed on one hand by the powers of the railroads and on 
the other by great financial interests; against it stands the 
poor miserable individual workingman. 

UNITED STATES SUPREME COURT 

There is no reason why five gentlemen of the Supreme 
Court should know better what public policy demands than 
five gentlemen of Congress. In the absence of legislation by 
Congress the Supreme Court expresses its idea of public 
policy, but in the last analysis it is the function of the legisla- 
tive branch of the government to declare the public policy 
of the United States. There are a great many rules which 
the Supreme Court lays down which may afterwards be 
changed, and are afterwards changed, by legislation. It is not 
disrespect to the Supreme Court to do it. Their interpreta- 
tion of the law may be set aside by a new law. 

* 

[430] If the Court is of opinion that this act of Congress 
is in necessary conflict with its recent decisions, those cases 
should be frankly overruled. The reasons for doing so are 
persuasive. Our experience in attempting to apply the rule, 
and helpful discussions by friends of the Court, have made 
it clear that the rule declared is legally unsound; that it dis- 
turbs legal principles long established; and that if adhered 
to, it will make a serious addition to the classes of cases 
which this Court is required to review. Experience and dis- 
cussion have also made apparent how unfortunate are the 
results, economically and socially. It has, in part, frustrated 
a promising attempt to alleviate some of the misery, and re- 
move some of the injustice, incident to the conduct of in- 
dustry and commerce. These far-reaching and unfortunate 
results of the rule declared in Southern Pacific Co. v. Jensen 
cannot have been foreseen when the decision was rendered. 
If it is adhered to, appropriate legislative provision, urgently 
needed, cannot be made until another amendment of the 



178* the words of 

Constitution shall have been adopted. For no federal work- 
men's compensation law could satisfy the varying and pe- 
culiar economic and social needs incident to the diversity 
of conditions in the several States. 

* 

This Court cannot issue declaratory decrees. 

* 

It is not our province to weigh evidence. Put at its high- 
est, our function is to determine, in the light of all facts 
which may enrich our knowledge and enlarge our under- 
standing, whether the measure, enacted in the exercise of 
an unquestioned police power and of a character inher- 
ently unobjectionable, transcends the bounds of reason; 
that is, whether the provision as applied is so clearly arbi- 
trary or capricious that legislators acting reasonably could 
not have believed it to be necessary or appropriate for the 
public welfare. 

* 

It is a peculiar virtue of our system of law that the process 
of inclusion and exclusion, so often employed in developing 
a rule, is not allowed to end with its enunciation and that an 
expression in an opinion yields later to the impact of facts 
unforeseen. The attitude of the Court in this respect has 
been especially helpful when called upon to adjust the re- 
spective powers of the States and the Nation in the field 
of taxation. 31 

UNITY 

Absence of discord does not imply unity. Absence of dis- 
cord may be due to indifference. Unity implies interest and 
participation. There may be acquiescence in the decision of 
a self-constituted body purporting to act on behalf of a free 
people. But there cannot be unity of action of a free people 

31 See also Experimentation. 



Justice "Brandeis l 7 9 

unless the decision is the act of that people participating 
through its properly constituted representatives. 



UNIVERS ITY 



[435] Money alone cannot build a worthy University. Too 
much money or too quick money may mar one; particu- 
larly if it is foreign money. To become great, a University 
must express the people whom it serves, and must express 
the people and the community at their best. The aim must 
be high and the vision broad; the goal seemingly attainable 
but beyond the immediate reach. 

* 

The function of the University in respect to the fine arts 
is not limited to promoting understanding and appreciation. 
It should strive to awaken the slumbering creative instinct, 
to encourage its exercise and development, to stimulate pro- 
duction. 



UNREST 32 



The real cause that is disturbing business today is not the 
uncertainty as to the interpretation of "reasonable" or "un- 
reasonable" restraint of trade; it is this social unrest of our 
people in this struggle with which none in our history save 
the Revolution and the Civil War can be compared. 

* 

The only way to meet the socialistic and restless spirit of 
the times is to meet and remove each individual case of in- 
justice. 

* 

My observation leads me to believe that while there are 
many contributing causes to unrest, that there is one cause 
which is fundamental. That is, necessary conflict the con- 

32 See also Industrial Absolutism. 



480* the words of 

trast between our political liberty and our industrial absolu- 
tism. 33 

* 

[440] Unrest means ordinarily unused faculties, and there 
will be labor unrest until the faculties of the laboring man 
are fully utilized, and they cannot be without a share in the 
responsibility for the results of the business in which they 
are engaged. 34 

* 

Unrest will be to a certain extent mitigated by anything 
which improves the condition of the workers, and I cannot 
see any real solution, ultimate solution, or an approximation 
of a solution of unrest as long as there exists in this country 
any juxtaposition of political democracy and industrial abso- 
lutism. To my mind, before we can really solve the problem 
of industrial unrest, the worker must have a part in the re- 
sponsibility and management of the business, and whether 
we adopt scientific management, or adopt any other form 
of obtaining compensation or of increasing productivity, 
unrest will not be removed as long as we have that incon- 
sistency, as I view it. 

UNRESTRICTED POWER 

I should not rely upon the goodness of heart of anybody. 
Neither our character nor our intelligence can long bear the 
strain of unrestricted power. 

* 

The sense of unrestricted power is just as demoralizing for 
the employer as it is for the employee. 35 

33 See Monopoly. 

34 See also Unions. 

35 See also Employer and Employee. 



Justice "Brandeis i 8 i 

UNWIELDY COMMITTEES 

Unwieldy committees were devised by autocrats whose 
advantage it is to pose as being democrats. 

VALUE 

[445] Value is a word of many meanings. 

VITAL AND BEYOND PRICE 

But precisely because I believe in this future in which 
material comfort is to be comparatively easy of attainment, 
I also believe that the race must steadily insist upon pre- 
serving its moral vigor unweakened. It is not good for us 
that we should ever lose the fighting quality, the stamina, 
and the courage to battle for what we want when we are 
convinced that we are entitled to it, and other means fail. 
There is something better than peace, and that is the peace 
that is won by struggle. 36 We shall have lost something vital 
and beyond price on the day when the State denies us the 
right to resort to force in defense of a just cause. 

WAR 

The cause of a war as of most human action is not 
single. War is ordinarily the result of many cooperating 
causes, many different conditions, acts, and motives. His- 
torians rarely agree in their judgment as to what was the de- 
termining factor in a particular war, even when they write 
under circumstances where detachment and the availability 
of evidence from all sources minimize both prejudice and 
other sources of error; for individuals, and classes of indi- 
viduals, attach significance to those things which are sig- 
nificant to them. And, as the contributing causes cannot be 
subjected, like a chemical combination in a test tube, to 
qualitative and quantitative analysis so as to weigh and 
value the various elements, the historians differ necessarily 

* See Better Than Peace. 



1S2* the words of 

in their judgments. One finds the determining cause of war 
in a great man; another in an idea, a belief, an economic 
necessity, a trade advantage, a sinister machination, or an 
accident. It is for this reason largely that men seek to inter- 
pret anew in each age, and often with each generation, the 
important events in the world's history. 

WAR AND ITS AFTERMATH 

Europe was devastated by war, we by the aftermath. 

WHITE PAPER ON PALESTINE 

The White Paper does no credit to the moral integ- 
rity of British statesmen. Nor even to their diplomatic 
skill 37 

WIRE TAPPING 38 

[450] The progress of science in furnishing the Govern- 
ment with means of espionage is not likely to stop with wire 
tapping. Ways may some day be developed by which the 
Government, without removing papers from secret drawers, 
can reproduce them in court, and by which it will be enabled 
to expose to a jury the most intimate occurrences of the 
home. Advances in the psychic and related sciences may 
bring means of exploring unexpressed beliefs, thoughts, and 
emotions. "That places the liberty of every man in the hands 
of every petty officer" was said by James Otis of much lesser 
intrusions than these. To Lord Camden a far slighter in- 
trusion seemed "subversive of all the comforts of society." 
Can it be that the Constitution affords no protection against 
such invasions of individual security? 

37 Justice Brandeis was referring to the British White Paper on Pales- 
tine of 1939. 
58 See also Government Intrusion. 



'Justice "Brandeis i 8 3 

WOMEN 

Women often have greater opportunities than men to 
bring about social reform, for which all of us are working. 
They have the desire, enthusiasm and understanding. 

WOMEN OVERWORK 

The experience of manufacturing countries has illustrated 
the evil effect of overwork upon the general welfare. Deterio- 
ration of any large proportion of the population inevitably 
lowers the entire community physically, mentally, and mor- 
ally. When the health of women has been injured by long 
hours, not only is the working efficiency of the community 
impaired, but the deterioration is handed down to succeed- 
ing generations. Infant mortality rises, while the children of 
married workingwomen who survive are injured by inevita- 
ble neglect. The overwork of future mothers thus directly 
attacks the welfare of the nation. 

ZIONISM 39 

It [Zionism] is not a movement to remove all the Jews of 
the world compulsorily to Palestine. In the first place there 
are 14,000,000 Jews, and Palestine would not accommodate 
more than one-third of that number. In the second place, it 
is not a movement to compel anyone to go to Palestine. 
It is essentially a movement to give to the Jew more, not less 
freedom; it aims to enable the Jews to exercise the same 
right now exercised by practically every other people in the 
world: To live at their option either in the land of their 
fathers or in some other country; a right which members of 
small nations as well as of large, which Irish, Greek, Bul- 
garian, Serbian, or Belgian, may now exercise as fully as 
Germans or English. 

Zionism seeks to establish in Palestine, for such Jews as 

39 See also Noblesse Oblige. 



i S 4 * the words of 

choose to go and remain there, and for their descendants, 
a legally secured home, where they may live together and 
lead a Jewish life, where they may expect ultimately to con- 
stitute a majority of the population, and may look forward 
to what we should call home rule. The Zionists seek to estab- 
lish this home in Palestine because they are convinced that 
the undying longing of Jews for Palestine is a fact of deepest 
significance; that it is a manifestation in the struggle for 
existence by an ancient people which has established its 
right to live, a people whose three thousand years of civiliza- 
tion has produced a faith, culture and individuality which 
will enable it to contribute largely in the future, as it has in 
the past, to the advance of civilization; and that it is not a 
right merely but a duty of the Jewish nationality to survive 
and develop. They believe that only in Palestine can Jewish 
life be fully protected from the forces of disintegration; that 
there alone can the Jewish spirit reach its full and natural 
development; and that by securing for those Jews who wish 
to settle there the opportunity to do so, not only those Jews, 
but all other Jews will be benefited, and that the long per- 
plexing Jewish Problem will, at last, find solution. 



Zionism suffers from a superfluity of orators and a dearth 
of statesmen. 

ZIONISM AND PATRIOTISM 

[455] Let no American imagine that Zionism is inconsistent 
with Patriotism. Multiple loyalties are objectionable only il 
they are inconsistent. A man is a better citizen of the Unitec 
States for being also a loyal citizen of his state, and of hi? 
city; for being loyal to his family, and to his profession 01 
trade; for being loyal to his college or his lodge. Every Iris! 
American who contributed towards advancing home rule wa: 
a better man and a better American for the sacrifice hu 



Justice Tirandeis 4 8 5 

made. Every American Jew who aids in advancing the Jew- 
ish settlement in Palestine, though he feels that neither he 
nor his descendants will ever live there, will likewise be a 
better man and a better American for doing so. 



BIOGRAPHICAL NOTES 



The numbers to the left of the notes refer back to the 
passages in the text. In the latter, to keep the margin of the 
page clear, only each fifth passage is marked. The reader 
should not find it difficult to fit together the in-between 
passages with their proper numbers. Since this little book 
is not intended for the scholar, the references are as a rule 
given to the books by and on Justice Brandeis that are con- 
veniently available, and not to the Journals, Magazines, Law 
Reviews, or Reports in which they first appeared. Those 
interested in tracing a quotation to its original source will 
be able to do so, generally, by looking up the reference here 
given. Thus, for example, the quotations from Ernest Poole 
are referred back to Business A Profession. There the reader 
will learn that Mr. Pooled essay was first published in the 
American Magazine, February, 191 1. 

187 



188 * 

1 Mason, A Free Man's Life, 
p. 505. 

2 Idem, The Brandeis Way, p, 
71. 

3 Idem, Brandeis and the Mod- 
ern State, pp. 79 f . 

4 In a conversation with me. 

5 In a conversation with me. 

6 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 15. 

17 Ernest Poole, Foreword to 
Business A Profession, p. 
liv. 

s In a conversation with me. 

9 Brandeis, Business A Pro- 
fession, pp. 372 f. 

10 Mason, A Free Man's Life, 
p. 531. 

11 Brandeis, Letter to Frederick 
Wehle, October 28, 1924. In 
Flexner, Mr, Justice Brandeis 
and the University of Louis- 
ville, p. 24. 

12 Idem, Other People's Money, 

p. 50. 

is Fraenkel, The Curse of Big- 
ness, p. 35. 

14 Brandeis, Business A Fro- 
fession, p. 58. 

is Idem, Ibid., pp. 366 f . 

is Fraenkel, The Curse of Big- 
ness, p. 81. 

^ Idem, Ibid., p. 73. 
is Idem, Ibid., p. 51. 



tbe words of 

19 Brandeis, Business A Pro- 
fession, pp. 365 f. 

2a In a conversation with rne. 

21 Brandeis, Letter to Alfred 
Brandeis, January 16, 1927. 
In Flexner, Mr. Justice Bran- 
deis and the University of 
Louisville, p. 53. 

22 Idem, Business A Profes- 
sion, p. 367. 

^ 3 Goldman, Brandeis on Zion- 
ism, p. 29. 

24 Idem, Ibid. 

2 5 In a conversation with me. 
2" 6 In a conversation with me, 

27 Fraenkel, The Curse of Big- 
ness, pp. 44 f. 

28 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 261. 

29 Mason, A Free Man's Life, 
p. 200. 

30 Lief, Social and Economic 
"Views of Mr. Justice Bran- 
deis, p. 141. 

31 Brandeis, Letter to Fanny 
Brandeis, October 20, 1924. 
In Flexner, Mr. Justice Bran- 
deis and the University of 
Louisville, p. 16. 

331 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 153. 

33 Fraenkel, The Curse of Big- 
ness, p. 40. 

^ Idem, Ibid., p. 41. 



justice B r a n d e i 

35 Brandeis, Other People's 
Money, p. 109. 

36 Idem, Ibid., pp. 44 f. 
w Idem, Ibid., pp. 201 f. 
33 Idem, Ibid., pp. 198 ff. 

39 Idem, Ibid., pp. 22 f. 

40 Fraenkel, The Curse of Big- 
ness, p. 263. 

41 Idem, Ibid., p. 46. 

42 In a conversation with me. 

43 Brandeis, Business A Pro- 
fession, p. 12. 

44 Lief, Brandeis: The Personal 
History of an American Ideal, 
pp. 220 f. 

45 Brandeis, Other People's 
Money, p. 163. 

46 Idem, Business A Profes- 
sion, p. 287. 

47 Mason, Brandeis and the 
Modern State, p. 58. 

48 Frankfurter, Mr. Justice 
Brandeis, p. 133. 

49 Fraenkel, The Curse of Big- 
ness, p. 107. 

so Idem, Ibid., p. 292. 



62 Idem, Ibid., p. 36. 

53 Brandeis, Business A Pro- 
fession, pp. 370 f. 



55 Idem, Ibid., p. 1. 

5 e Fraenkel, The Curse of Big- 
ness, pp. 141 f. 



5 i 89 

57 Brandeis, Business A Pro- 
fession, pp. 4f. 

58 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 212. 

59 Fraenkel, The Curse of Big- 
ness, p. 185. 

60 Brandeis, Letter to Alfred 
Brandeis, February 18, 1925. 
In Flexner, Mr. Justice Bran- 
deis and the University of 
Louisville, p. 8. 

61 Idem, Business A Profes- 
sion, pp. 346 ff. 

62 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 410. 

63 Mason, A Free Man's Life, 
p. 94. 

64 Goldman, Brandeis on Zion- 
ism, p. 64. 

65 Brandeis, Business A Pro- 
fession, p. 370. 

66 In a conversation with me. 

67 Fraenkel, The Curse of Big- 
ness, pp. 270 f. 

68 In a conversation with me. 

69 Brandeis, Business A Pro- 
fession, pp. 348 f. 

Fraenkel, The Curse of Big- 
ness, pp. 78 f . 

71 Mason, Brandeis and the 
Modern State, p. 67. 

f* Ernest Poole, Foreword to 
Business A Profession, pp. 
xlvf. 



1 90 

73 Fraenkel, The Curse of Big- 
ness, p. 105. 

74 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 80. 

75 Idem, Ibid., pp. 398 . 

76 Idem, Brandeis: The Personal 
History of an American Ideal, 
p. 450. 

77 Idem, Ibid,, p. 123. 

78 Fraenkel, The Curse of Big- 
ness, p. 197. 

79 Idem, Ibid., pp. 106 f. 
so Idem, Ibid., p. 76. 

81 Ernest Poole, Foreword to 
Business A Profession, p. 
xii. 

82> Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 390. 

83 Mason, The Brandeis Way, 
p. 166. 

s^ Fraenkel, The Curse of Big- 
ness, p. 69. 

85 Brandeis, Business A Pro- 
fession, pp. 368 f. 

86 Idem, Other People's Money, 
pp. 222 f. 

87 Idem, Business A Profes- 
sion, p. 337. 

88 Ernest Poole, Foreword to 
Business A Profession, p. Iv. 

89 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 399. 



the words of 

90 Mason, Brandeis and the 
Modern State, p. 79. 

91 Brandeis, Business A Pro- 
fession, p. 125- 

92 Idem, Other People's Money ; 
p. 204. 

Fraenkel, The Curse of Big- 
ness, p. 88. 

94 Brandeis, Letter to Stella and 
Emily Dembitz, May 17, 
1926. In Flexner, Mr. Justice 
Brandeis and the University 
of Louisville, pp. 36 f. 

95 Goldman, Brandeis on Zion- 
ism, p. 91. 

96 Mason, Brandeis and the 
Modern State, p. 102. 

97 Idem, A Free Man's Life, p. 

382. 

98 Brandeis, Business A Pro- 
fession, p. 371. 

9<9 Goldman, Brandeis on Zion- 
ism, p. 64. 

100 Idem, Ibid. 

ii Brandeis, Business A Pro- 
fession, p. 29. 

102 Mason, A Free Man's Life, 
p. 520. 

103 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 196. 

104 Brandeis, Business A Pro- 
fession, p. 278. 

105 Idem, Other People's Money, 
p. 44. 



Justice B r a n d e i 

106 Idem, Business A Profes- 
sion, p. 372. 

107 In a conversation with me. 

i 8 Lief, Brandeis: The Personal 
History of an American Ideal, 
p. 277. 

109 Goldman, Brandeis on Zion- 
ism, p. 64. 

110 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 26. 

111 Goldman, Brandeis on Zion- 
ism, p. 64. 

112 Idem, Ibid., p. 67. 

113 Brandeis, Business A Pro- 
fession, p. 368. 

114 Fraenkel, The Curse of Big- 
ness, p. 82. 

115 Brandeis, Business A Pro- 
fession, p. 32. 

116 Mason, A Free Man's Life, 
p. 602. 

117 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 165. 

118 Brandeis, Business A Pro- 
fession, p. 3. 

no Idem, Ibid., pp. 206 f . 

120 Idem, Other People's Money, 
pp. 204 f. 

121 Fraenkel, The Curse of Big- 
ness, p. 51. 

122 Brandeis, Other People's 
Money, p. 202. 

123 Fraenkel, The Curse of Big- 
ness, pp. 85 f. 



126 



127 



129 



184 



185 



186 



i 9 i 

Mason, A Free Man's Life, 
p. 38. 

Idem, Ibid., p. 141. 

Fraenkel, The Curse of Big- 
ness, pp. 92 f. 

Brandeis, Business A Pro- 
fession, p. 17. 

Idem, Ibid., pp. 21 f. 

Fraenkel, The Curse of Big- 
ness, pp. 85 f. 

Idem, Ibid., pp. 89 f . 
Idem, Ibid., p. 95. 

Mason, A Free Man's Life, 
p. 529. 

Fraenkel, The Curse of Big- 
ness, p. 87. 

Brandeis, Business A Pro- 
fession, pp. 364 f. 

Mason, Brandeis and the 
Modern State, pp. 95 f. 

Fraenkel, The Curse of Big- 
ness, p. 114. 

Lief, Brandeis: The Personal 
History of an American Ideal, 
p. 78. 

Brandeis, Business A Pro- 
fession, pp. 338f. 

Fraenkel, The Curse of Big- 
ness, p. 270. 

Idem, Ibid., pp. 156fL 
Idem, Ibid., pp. 68 f . 

Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 5. 
Idem, Ibid., p. 411. 



19 

144 



146 



147 



14S 



* 49 



150 



152 



156 



159 
160 
161 
162 

163 



Ernest Poole, Foreword to 
Business A Profession, pp. 
livf. 

Fraenkel, The Curse of Big- 
ness, p. 24. 

Brandeis, Business A Pro- 
fession, pp. 127 f. 

Lief, Social and Economic 
Views of Mr. Justice Bran- 
dels, p. 261. 

Brandeis, Business A Pro- 
fession, pp. 58 f. 

Ernest Poole, Foreword to 
Business A Profession, pp. 
liif. 

Brandeis, Business A Pro- 
fession., p. 369. 

Lief, Social and Economic 
Views of Mr. Justice Bran- 
dels, pp. 260 ff. 

idem, Ibid., pp. 212 ff. 
Idem, Ibid., p. 236. 
Idem, Ibid., pp. 2 35 f. 
Idem, Ibid., p. 259. 
Idem, Ibid., p. 260. 
icfe m> Bf<l, p. 264. 
idem, Ibid., p. 231. 
Idem, Ibid., p. 261. 
In a conversation with me. 
In a conversation with me. 
Brandeis, Business A Pro- 
fession, p. 3. 

Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 284. 



the words of 
i* 4 Idem, Ibid., p. 271. 

165 Ernest Poole, Foreword to 
Business A Profession, p. 
Hi. 

166 Mason, A Free Man's Life, 
p. 281. 

167 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 281. 

* Idem, Ibid., pp. 280 t. 
"' Idem, Ibid., p. 391. 

170 Ernest Poole, Foreword to 
Business A Profession, p. 
xxvi. 

171 Brandeis, Other People's 
Money, p. 50. 

172 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 261. 

173 Mason, Brandeis and the 
Modern State, p. 98. 

174 Idem, A Free Man's Life, p. 
80. 

175 Lief, Brandeis: The Personal 
History of an American Ideal, 
p. 205. 

176 Brandeis, Business A Pro- 
fession, p. 361. 

177 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 236. 

178 Goldman, Brandeis on Zion- 
ism, pp. 27 f. 

Idem, Ibid., p. 52. 
<* Idem, Ibid., p. 100. 



Justice Brandet 

181 In a conversation with me. 

182 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis^. 345. 

183 Mason, Brandeis and the 
Modern State, p. 31. 

184 Brandeis, Business A Pro- 
fession, pp. 37 f. 

185 Idem, Other People's Money, 
p. 23. 

186 Lief, Brandeis: The Personal 
History of an American Ideal, 
p. 123. 

w Fraenkel, The Curse of Big- 
ness, p. 292. 

188 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 410. 

189 In a conversation with me. 

190 Brandeis, Letter to Alfred 
Brandeis, January 16, 1927. 
In Flexner, Mr. Justice Bran- 
deis and the University of 
Louisville, p. 53. 

191 Fraenkel, The Curse of Big- 
ness, pp. 267 ff. 

192 Goldman, Brandeis on Zion- 
ism, p. 98. 

193 Brandeis, Business A Pro- 
fession, p. 342. 

194 Fraenkel, The Curse of Big- 
ness, pp. 73 f. 

195 Ernest Poole, Foreword to 
Business A Profession, pp. 
xxxviii f . 



5 193 

196 Brandeis, Other People's 

Money, p. 208. 

197 Fraenkel, The Curse of Big- 
ness, p. 79. 

*Idem, Ibid., pp. 35 f. 

199 Mason, A Free Man's Life, 
p. 372. 

200 Brandeis, Business A Pro- 
fession, p. 16. 

201 Fraenkel, The Curse of Big- 
ness, p. 80. 

202 Idem, Ibid., p. 39. 

203 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis,pp.373L 

204 Brandeis, Business A Pro- 
fession, p. 27. 

2 s Idem, Ibid., p. 26. 

206 Mason, Brandeis and the 
Modern State, p. 206. 

207 Ernest Poole, Foreword to 
Business A Profession? p. 

XX. 

208 Brandeis, Business A Pro- 
fession, pp. 324 f . 

209 Lief, Brandeis: The Personal 
History of an American Ideal, 
p. 290. 

210 Brandeis, Other People's 
Money, p. 51. 

sii Idem, Ibid., p. 99. 

212 Idem, Business A Profes- 
sion, p. 45. 

sis Fraenkel, The Curse of Big- 
ness, p. 157. 



494 

214 Goldman, Brandeis on Zion- 
ism, pp. 14 f. 

215 Idem, Ibid., p. 153. 

216 In a conversation with me. 

217 Goldman, Brandeis on Zion- 
ism, p. 41. 

sis Idem, Ibid., pp. 22 f. 

219 Idem, Ibid., pp. 61 f. 

220 Uem, Ibid., p. 22. 

221 Idem, Ibid., p. 44. 
^ Idem, Ibid., pp. UL 

223 Mason, A Free Man's Life, 
p. 486. 

224 Goldman, Brandeis on Zion- 
ism, pp. 13 f. 

225 Uem, Ibid., p. 29. 

226 Uem, Ibid., p. 42. 
w Idem, Ibid., pp.61 &. 

228 idem, Ibid., p. 36. 

229 In a conversation with me. 

230 Mason, A Free Man's Life, 
p. 532. 

231 Ernest Poole, Foreword to 
Business A Profession, p. 
liv. 

232 Brandeis, Business A Pro- 
fession, pp. 361 f. 

233 Ernest Poole, Foreword to 
Business A Profession, pp. 
livf. 

23* Brandeis, Business A Pro- 
fession, p. 320. 

235 Fraenkel, The Curse of Big- 
ness, pp. 86 f . 



the words of 

236 Brandeis, Business A Pro- 
fession, p. 350. 

237 Ernest Poole, Foreword to 
Business A Profession, p. 
liv. 

238 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 325. 

239 Idem, Ibid., pp. 29 f . 

240 Brandeis, Business A Pro- 
fession, pp. 362 f . 

241 Mason, Brandeis and the 
Modern State, pp. 218 f. 

242 As phrased by Professor 
Mason, Idem, Ibid., p. 221. 

243 Brandeis, Business A Pro- 
fession, p. 98. 

244 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 267. 

245 Brandeis, Business A Pro- 
fession, pp. 359 ff. 

246 Mason, A Free Man's Life, 
p. 80. 

247 Ernest Poole, Foreword to 
Business A Profession, p. x. 

248 Idem, Ibid., p. Iv f . 

249 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 402. 

250 Brandeis, Business A Pro* 
fession, pp. 331 f. 

251 Ernest Poole, Foreword to 
Business A Profession, p. 
Ivi. 



'Justice B r a n d e i 

252 Brandeis, Business A Pro- 
fession, pp. 338 f. 

253 idem, Ibid., p. 349. 

254 idem, Ibid., p. 29. 

255 The reference escapes me. 

256 Brandeis, Business A Pro- 
fession, p. 368. 

257 idem, Ibid., p. 34. 

258 idem, Ibid., p. 29. 

259 Goldman, Brandeis on Zion- 
ism, p. 17. 

260 Brandeis, Letter to Charles 
G. Tachau, April 22, 1926. 
In Flexner, Mr. Justice Bran- 
deis and the University of 
Louisville, p. 32. 

261 Idem, Business A Profes- 
sion, p. 24. 

262 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 377. 

263 idem, Ibid., p. 240. 

264 Fraenkel, The Curse of Big- 
ness, p. 89. 

265 idem, Ibid., p. 268. 

266 Brandeis, Other People's 
Money, p. 208. 

267 Idem, Business A Profes- 
sion, p. 364. 

268 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 281. 

269 Brandeis, Business A Pro- 
fession, p. 330. 



s * 195 

270 Idem, Letter to Alfred Bran- 
deis, January 16, 1927. In 
Flexner, Mr. Justice Brandeis 
and the University of Louis- 
ville, p. 1 3. 

271 Mason, Brandeis and the 
Modern State, pp. 218 f. 

272 Brandeis, Business A Pro- 
fession, p. 355. 

273 Mason, Brandeis and the 
Modern State, p. 231. 

274 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 376. 

275 Brandeis, Business A Pro- 
fession, p. 367. 

276 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 344. 

277 idem, Ibid., p. 343. 

278 Fraenkel, The Curse of Big- 
ness, p. 56. 

279 Lief, Brandeis: The Personal 
History of an American Ideal, 
p. 173. 

280 Brandeis, Business A Pro- 
fession, p. 6. 

281 Goldman, Brandeis on 'Zion- 
ism, p. 82. 

282 Brandeis, Business A Pro- 
fession, p. 49. 

283 Fraenkel, The Curse of Big- 
ness, p. 270. 

2 84 Mason, A Free Man's Life, 
p. 91. 



196 

285 Fraenkel, "The Curse of Big- 
ness,]). 159. 

286 Brandeis, Business A Pro- 
fession, p. 1 54. 

287 Mason, A Free Man's Life, 
p. 94. 

288 Idem, Ibid., p. 506. 

289 In a conversation with me. 

290 Lief, Social and Economic 
Views of Mr. Justice Bran- 
dels, p. 378. 

291 In a conversation with me. 

292 Brandeis, Letter to Alfred 
Brandeis, February 18, 1925. 
In Flexner, Mr. Justice Bran- 
deis and the University of 
Louisville, p. 9. 

293 Fraenkel, The Curse of Big- 
ness, p. 40. 

294 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, pp. 314 f. 

29 5 Idem, Ibid., p. 228. 

296 Fraenkel, The Curse of Big- 
ness, pp. 165 f. 

297 Idem, Ibid., pp. 169 f. 

298 Idem, Ibid., p. 80. 

299 Mason, Brandeis and the 
Modern State, pp. 88 f. 

wo Idem, Ibid., p. 83. 

301 Fraenkel, The Curse of Big- 
ness, p. 76. 

302 Idem, Ibid., pp. 72 f. 

303 Mason, Brandeis and the 
Modern State, p. 79. 



the words of 

304 Idem, A Free Man's Life, 
p. 359. 

305 Brandeis, Other People's 
Money, pp. 47 S. 

306 Idem, Business A Profes- 
sion, pp. 158 f. 

SOT idem, Ibid., p. 278. 

308 Lief, Social and Economic 
Views of Mr. Justice Bran- 
efeis,pp.401f. 

309 Idem, Brandeis: The Personal 
History of an American Ideal, 
p. 123. 

31 Idem, Ibid., p. 205. 

311 Brandeis, Other People's 
Money, pp. 207 f. 

3 * 2 Idem, Ibid., p. 201. 

313 Fraenkel, The Curse of Big- 
ness, p. 105. 

*w Idem, Ibid. 

^ Idem, Ibid., p. 91. 

316 Goldman, Brandeis on Zion- 
ism, pp. 10 f. 

3 " Idem, Ibid., pp. 17 f. 
sis Idem, Ibid., pp. 19 f. 

319 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 29. 

320 j n a conversation with me. 

321 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, pp. 68 f . 

322 Brandeis, Other People's 
Money, p. 51. 



Justice B r a n d e i 
ass Mason, Brandeis and the 
Modern State, pp. 95 f. 

324 Goldman, Brandeis on Zion- 
ism, p. 30. 

325 Ernest Poole, Foreword to 
Business A Profession, p. li. 

326 Brandeis, Other People's 
Money, p. 208. 

327 Fiaenkel, The Curse of Big- 
ness, p. 110. 

328 Brandeis, Business A Pro- 
fession, pp. 223 f. 

32 Idem, Ibid., p. 276. 
Idem, Ibid., p. 71. 

331 Goldman, Brandeis on Zion- 
ism, p. 127. 

332 Mason, A Free Man's Life, 
p. 544. 

3 33 Idem, Ibid., p. 27. 

334 Goldman, Brandeis on Zion- 
ism, p. 93. 

335 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 128. 

336 Brandeis, Business A Pro- 
fession, p. 61. 

337 Fraenkel, The Curse of Big- 
ness, p. 40. 

338 Mason, Brandeis and the 
Modern State, p. 97. 

339 Brandeis, Other People's 
Money, pp. 17 ff. 

340 Fraenkel, The Curse of Big- 
ness, p. 265. 

34 * Idem, Ibid., p. 41. 



s -197 

342 Idem ,Ibid., p. 45, 

343 In a conversation with me. 

344 Mason, A Free Man's Life, 
p. 519. 

345 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 399. 

346 Idem, Brandeis: The Personal 
History of an American Ideal, 
p. 72. 

347 Fraenkel, The Curse of Big- 
ness, p. 86. 

348 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, pp. 59 f. 

34 Idem, Ibid., pp. 372 f. 

330 Brandeis, Business A Pro- 
fession, p. 278. 

351 Idem, Ibid., pp. 21 f. 

352 Ernest Poole, Foreword to 
Business A Profession, p. 
liii. 

853 Idem, Ibid., p. liv. 

354 Fraenkel, The Curse of Big- 
ness, p. 311. 

355 Mason, A Free Man's Life, 
p. 125. 

356 Brandeis, Other People's 
Money, p. 92. 

357 Fraenkel, The Curse of Big- 
ness, p. 264. 

358 Idem, Ibid., p. 266. 

35S In a conversation with me. 

360 Goldman, Brandeis on Zion- 
ism, p. 64. 



498 

361 Mason, A Free Man's Life, 
p. 603. 

362 In a conversation with me. 

363 Frankfurter, Mr. Justice Bran- 
dels, p. 78. 

364 Mason, A Free Man's Life, 
p. 38. 

365 Fraenkel, The Curse of Big- 
ness, pp. 104, 113 f. 

366 Lief, Social and Economic 
Views of Mr, Justice Bran- 
deis, p. 388. 

367 Fraenkel, The Curse of Big- 
ness, p. 270. 

368 Brandeis, Letter to Dean 
Warwick Anderson, June 4, 
1926. In Flexner, Mr. Justice 
Brandeis and the University 
of Louisville, p. 38. 

369 Fraenkel, The Curse of Big- 
ness, p. 270. 

370 In a conversation with me. 

371 In a conversation with me. 

372 As phrased by Professor 
Mason, Brandeis and the 
Modern State, p. 236. 

373 Fraenkel, The Curse of Big- 
ness, p. 315. 

374 Goldman, Brandeis on Zion- 
ism, p. 153. 

375 In a conversation with me. 

376 Frankfurter, Mr. Justice Bran- 
deis, p. 105. 

377 In a conversation with me. 

378 Mason, A Free Man's Life, 
p. 164. 



the words of 

379 Fraenkel, The Curse of Big- 
ness, p. 48. 

sso Idem, Ibid., p. 49. 

381 Ernest Poole, Foreword to 
Business A Profession, pp. 
xlviii f . 

382 In a conversation with me. 

383 Brandeis, Other People's 
Money, p. 103. 

384 Idem, Ibid., p. 6. 

385 Idem, Business A Profes- 
sion, p. 21. 

386 Lief, Brandeis: The Personal 
History of an American Ideal, 
p. 280. 

387 Fraenkel, The Curse of Big- 
ness, pp. 126 f. 

388 Brandeis, Business A Pro- 
fession, p. 23. 

389 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 345. 

39 Idem, Ibid., p. 346. 

391 Brandeis, Business A Pro- 
fession, p, 368. 

39 * Idem, Ibid., p. 45. 

393 Lief, Social and Economic 
Views of Mr. Justice 'Bran- 
deis, p. 379. 

394 Mason, A Free Man's Life, 
p. 603. 

395 Lief, Social and Economic 
Views of Mr. Justice Bran 
deis, p. 375. 

396 Ernest Poole, Foreword tc 
Business A Profession,^, lii 



justice B r a n A e i 

397 Brandeis, Business A Pro- 
fession, pp. 158 f. 

398 Fraenkel, The Curse of Big- 
ness 7 p. 270. 

399 Idem, Ibid., p. 40. 

400 Goldman, Erandeis on 'Zion- 
ism, p. 103. 

401 Brandeis, Other People's 
Money, p. 198. 

402 In a conversation with me. 
4 3 Fraenkel, The Curse of Big- 
ness, pp. 43 f. 

4 4 Idem, Ibid., p. 45. 

405 Goldman, Brandeis on Zion- 
ism, -pp. 130 f. 

406 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 378. 

407 Brandeis, Letter to Frederick 
Wehle, November 19, 1924. 
In Flexner, Mr. Justice Bran- 
deis and the University of 
Louisville, p. 5. 

408 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 411. 

409 Fraenkel, The Curse of Big- 
ness, p. 36. 

410 Brandeis, Business A Pro- 
fession, p. 38. 

411 Fraenkel, The Curse of Big- 
ness, p. 138. 

4 * 2 Idem, Ibid., p. 159. 
4 * 3 Idem, Ibid., p. 292. 
414 Goldman, Brandeis on Zion- 
ism, p. 41. 



S i99 

415 Fraenkel, The Curse of Big- 
ness, p. 158. 

416 Lief, Social and Economic 
Views of Mr, Justice Bran- 
deis,p. 10. 

417 Fraenkel, The Curse of Big- 
ness, p. 41. 

418 Brandeis, Business A Pro- 
fession, p. 46. 

419 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 374. 

420 Brandeis, Business A Pro- 
fession, p. 19. 

42 * Idem, Ibid., p. 88. 

422 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 378. 

423 Fraenkel, The Curse of Big- 
ness, p. 43. 

424 Brandeis, Business A Pro- 
fession, pp. 91 f. 

425 Mason, A Free Man's Life, 
p. 142. 

426 Brandeis, Business A Pro- 
fession, pp. 96 f . 

427 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, pp. 376 f. 

428 Fraenkel, The Curse of Big- 
ness, pp. 38 f. 

429 Lief, Brandeis: The Personal 
History of an American Ideal, 
p. 319. 

430 Frankfurter, Mr. Justice Bran- 
deis, p. 104. 



200 3 

43 * Idem, Ibid., p. 97. 

432 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 103. 

433 Frankfurter, Mr. Justice Bran- 
deis, p. 103. 

434 Goldman, Brandeis on Zion- 
ism, p. 102. 

435 Brandeis, Letter to Alfred 
Brandeis, February 18, 1925. 
In Flexner, Mr. Justice Bran- 
deis and the University of 
Louisville, p. 7. 

436 Idem, Letter to Fanny Bran- 
deis, October 20, 1924. In 
Flexner, Mr. Justice Brandeis 
and the University of Louis- 
ville, pp. 16 f. 

437 Fraenkel, The Curse of Big- 
ness, p. 39. 

438 Mason, The Brandeis Way, 
p. 174. 

439 Fraenkel, The Curse of Big- 
ness, p. 72. 

440 Mason, A Free Man's Life, 
p. 432. 

441 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, pp. 381 f. 

442 Mason, The Brandeis Way, 
p. 71- 



u s t i c e 'Brandeis 

443 Brandeis, Business A Pro- 
fession, -p. 17. 

444 In a conversation with me. 

445 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 147. 

446 Fraenkel, The Curse of Big- 
ness, p. 46. 

447 Lief, Social and Economic 
Views of Mr. Justice Bran* 
deis, p. 226. 

448 Mason, A Free Man's Life, 
p. 530. 

449 In a conversation with me. 

450 Lief, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 277. 

451 Idem, Brandeis: The Personal 
History of an American Ideal, 
p. 256. 

452 Idem, Social and Economic 
Views of Mr. Justice Bran- 
deis, p. 344. 

453 Goldman, Brandeis on Zion- 
ism, pp. 24 f. 

454 In a conversation with me. 

455 Goldman, Brandeis on Zion- 
ism, p. 28. 




Z 



126 656 



CZ 

IS